Citation Nr: 0812749 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 06-28 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, Spouse and Mother ATTORNEY FOR THE BOARD Motrya Mac, Associate Counsel INTRODUCTION The veteran, who is the appellant, served on active duty from April 1995 to May 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision, dated in June 2005, of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, WA. In September 2007, the veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. Although the veteran initially filed a secondary service connection claim for his neck disability, during his hearing he clarified that he wanted his claim to be considered solely on a direct basis. During the hearing the veteran submitted additional evidence along with a waiver for initial RO review. In March 2008, the appellant's claim was referred for a medical opinion by an expert of the Veterans Health Administration (VHA) pursuant to 38 U.S.C.A. § 7109 (West 2002) and as set forth in Veterans Health Administration Directive 10-95-040 dated April 17, 1995. In March 2008, the expert medical opinion was received and in April 2008, it was referred to the appellant and his representative for review and the submission of any additional evidence or argument. 38 C.F.R. § 20.1304(c) (2007). Given the favorable disposition of this case, no additional evidence or argument is necessary. FINDING OF FACT A cervical spine disability is shown by the competent medical evidence to be the result of service. CONCLUSION OF LAW A cervical spine disability was incurred in service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and implemented in part at 38 C.F.R. § 3.159 (2007), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in his possession that pertains to the claim. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided a pre adjudication VCAA notice by letter, dated in March 2005. In the letter, the veteran was notified of the evidence needed to substantiate the claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or an event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. The veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit private medical records. The veteran was asked to submit any evidence that would include that in his possession. In March 2006 the veteran received notice of the provisions for disability ratings and for the effective date of the claim, that is, the date of receipt of the claim. As for content of the VCAA notice, the document substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim, except for the degree of disability assignable and disability rating). To the extent that VCAA notice pertaining to degree of disability and effective date were not provided in the letter of March 2005, the Board may nevertheless proceed with adjudicating this grant of benefits. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Therefore there is no possibility of any prejudice to the veteran with respect to this limited VCAA content error. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service medical records and VA records. As the veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. A VA examination, dated in May 2005, is of record. While the VA examination focused on the veteran's cervical spine disability as secondary to his service-connected trapezius muscle strain and the veteran claims that the examiner misreported that his neck pain began in 1991, another VA examination is not warranted as the Board obtained a VHA opinion as to whether a cervical spine disability may be associated with an established injury or disease in service. Under these circumstances, a medical examination with medical opinion is not required under 38 C.F.R. § 3.159(c)(4). Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Factual Background Service medical records dated in September 1996 and August 1998 showed the veteran complained of back pain from the upper thoracic region to the lower cervical region. The veteran could not attribute the pain to a specific activity. The diagnosis both in September 1996 and August 1998 was left trapezius muscle spasm. In September 1996 the examiner noted the C3-C4 left transverse process appears to be rotated posteriorly without neurological deficits. The final physical examination of January 1999 did not indicate any cervical spine disability. Post service, the claims folder is replete with VA treatment records from 1999 to 2005, including for recurring neck spasms and pain. Records dated in October 1999 reported the veteran's complaints of spasm in his upper back and neck. Upon physical examination the veteran did not have tenderness, crepitus or deformity of the cervical spine. A progress note of November 1999 reported the veteran indicated he had a two year history of episodic pain in the muscles in the left side of his neck and left parathoracic spine area. In March 2001 the veteran complained of pain around the left scapula and shoulder with radiation up the left side of the posterior neck up to the occiput. The diagnosis was thoracocervical muscle spasm involving the left trapezius. During his VA examination of September 2001 the veteran reported recurrent persistent pain in his posterior thoracic region just lateral of the spine extending from C2 to T10 and lateral to the medial edge of the left scapula. The examiner noted the injury was first reported as pain while on active duty and the etiology was unknown. Upon physical examination there was no evidence of any neurologic abnormalities. The diagnosis was chronic trapezius muscle strain. In March 2002 the veteran was granted service connection for chronic trapezius muscle strain, under 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5290. X-rays from March 2003 showed the cervical spine was normal. In April 2003 the veteran underwent private physical therapy for his neck and shoulder pain. A private evaluation in July 2003 found no deformities, spasm, or tenderness; range of motion was active although guarded with rotation, flexion and extension. The diagnosis was painful posterior shoulder and neck most consistent with a cervical pain source. An electromyographic report of September 2003 found no abnormalities in any of the muscles extending from C5 to C8 myotomes to suggest the presence of cervical radiculopathy. A VA progress note dated in March 2005 indicated a diagnosis of neck pain from C5 radiculopathy. The VA examination of May 2005 provided a diagnosis of degenerative cervical spine and disk disease with canal stenosis at C4 and 5 as diagnosed by a recent MRI. The examiner indicated the reason for the onset of the veteran's pain was unknown. As explained earlier, the veteran claims that the examiner misunderstood him and incorrectly noted his pain began in 1991, prior to service. Thus the examiner's opinion that it is impossible to know the etiology of the problem because the veteran's neck discomfort began in 1991 is not relevant. The veteran testified at a personal hearing before the undersigned in September 2007. He stated that a service injury led to his cervical spine disability. His mother verified that the veteran was in perfect health on entry into service and that he did not have a neck or cervical spine disorder at that time. She noted that he did complain of pain after service. The VHA expert reviewed the veteran's claims file prior to rendering a nexus opinion. The expert identified the various laboratory findings as well as physical findings during service and from that time. The current cervical spine disabilities were degenerative disc disease of C4-5 and C5-6 with intervertebral disc space narrowing and loss of disc T2 signal and C4-5 left paracentral disc protrusion in combination with left-sided osteophyte producing canal stenosis. Based on the factual evidence or record, the VHA expert opined that the neck findings were causally related to service, as the cervical spine findings were associated with a history of trauma (especially the unilateral nature of the described findings on magnetic resonance imaging). Analysis In carefully reviewing the record, the Board finds that service connection for a cervical spine disability is merited. The service medical records show that the veteran complained of neck pain. Significantly, the in-service diagnosis of left trapezius muscle strain, which was later service-connected, was initially rated under the criteria pertinent to the cervical spine. The veteran is currently service-connected for chronic left supraspinatus strain, evaluated under Diagnostic Code 5304. The Board must not evaluate the same disability (i.e. a disability which presents the same essential symptomotology with overlapping effect) as multiple disabilities based on various characterizations of diagnosis. See Esteban v. Brown, 6 Vet. App. 259 (1994). Such a practice would amount to pyramiding and is to be avoided. See 38 C.F.R. § 4.14. The fact remains, however, that symptoms affecting the cervical spine were initially rated in the original grant of service connection. Subsequent to service, the veteran's file is replete with treatment records for neck pain and he currently has a diagnosis of degenerative cervical spine and disk disease. Of very high probative value is the medical nexus opinion of the VHA expert, associating the veteran's cervical spine disability to service. This VHA expert reviewed the veteran's claims file prior to rendering a nexus opinion and based on the entire factual background, including the sworn oral testimony provided by the veteran, his mother and his spouse, concluded that the current cervical spine disability is causally related to service. As such, service connection is warranted. ORDER Entitlement to service connection for a cervical spine disability is granted. ____________________________________________ M. SABULSKY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs