Citation Nr: 0834339 Decision Date: 10/06/08 Archive Date: 10/16/08 DOCKET NO. 03-29 249A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a neck disorder. 2. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Chris Yegen, Associate Counsel INTRODUCTION The veteran served on active duty from September 1966 to September 1969. This case comes to the Board of Veterans' Appeals (Board) from a November 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for neck and back disorders. In support of his claims, the veteran provided testimony at a travel Board hearing in May 2006 before a Veterans Law Judge (VLJ). In a September 2008 letter, the Board informed the veteran that the VLJ who had conducted that May 2006 hearing was no longer employed by the Board, having since retired, and therefore, that the veteran had the option of requesting another hearing to be conducted by a VLJ who will ultimately decide this appeal. See 38 C.F.R. § 20.707 (2007). The veteran responded later that same month that he did not want another hearing, and that the Board should consider his claims on the evidence of record. In October 2006, the Board remanded the claims for the neck and back disorders to the RO, via the Appeals Management Center (AMC), for further development and consideration. This additional development included obtaining the clinical records concerning the veteran's treatment for multiple fragment wounds from a mine explosion in Vietnam and providing a VA orthopedic examination to determine whether his currently diagnosed neck and back disorders are attributable to his military service. Also in that October 2006 remand, the Board indicated the veteran had filed a timely notice of disagreement (NOD) with the initial 30 percent rating assigned for his post-traumatic stress disorder (PTSD), but that he had not received a statement of the case (SOC) concerning that additional claim or been given an opportunity to perfect an appeal to the Board concerning that additional claim by filing a timely substantive appeal (VA Form 9 or equivalent statement). So the Board also remanded that claim, rather than merely referring it to the RO or AMC. See Manlincon v. West, 12 Vet. App. 238 (1999). In an April 2008 decision on remand, the AMC granted a higher 50 percent rating for the PTSD retroactively effective from March 30, 2004. The AMC also sent the veteran a SOC on May 3, 2008 concerning the increase in rating for this condition, and he did not respond by filing a timely substantive appeal (VA Form 9 or equivalent statement) within 60 days to perfect an appeal to the Board concerning that additional claim. 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.303, 20.304, 20.305, 20.306 (2007). Unfortunately, VA did not receive a substantive appeal concerning that PTSD claim until August 21, 2008. Hence, the only claims currently at issue before the Board are those remaining for service connection for the neck and back disorders. FINDINGS OF FACT 1. A July 1968 service medical report (after a mine explosion) notes the veteran received treatment for his back from a fragment wound at the right costovertebral angle. In addition, his military separation examination in July 1969 noted multiple scars on his posterior chest (i.e., back). 2. The August 2001 VA examiner concluded the veteran's back and neck disorders were unrelated to the shrapnel wounds he had sustained while in the military. This examiner explained that the shrapnel wounds to the veteran's upper right chest were not near the cervical spine or at the base of the spine area. In addition, said the VA examiner, the shrapnel wounds over the lower hip, the lower right side above the hip and calf areas were unrelated to the veteran's then present back problems. 3. However, Dr. G.M.W. opined in September 2003 and December 2006 that the veteran's severe spine injuries (cervical and lumbar) are due to the shrapnel wounds he sustained from the mine explosion in July 1968 during his tour in Vietnam. 4. A VA examiner even more recently determined in March 2008, on remand, that it is more likely than not the veteran's current complaints of cervical spine and lumbar spine degenerative disc disease are related to his blast injury during service. 5. Moreover, an independent medical opinion (IMO) from Dr. C.N.B., a private physician, also determined the veteran's cervical and lumbar spine degenerative disc problems are all due to the blast injuries he sustained in service. This examiner's rationale noted the veteran was directly exposed to a major blast injury resulting in a head injury with damage to his helmet, that he lost consciousness, that he was transported to larger regional hospitals, that pictures clearly show the residuals of three shrapnel wounds (scars) to his back, and that blast injuries are known to accelerate the onset of the degenerative process of the spine. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in his favor, the veteran's neck disorder was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2007). 2. Resolving all reasonable doubt in his favor, the veteran's back disorder also was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Since the Board is granting the veteran's claims, in full, there is no need to discuss whether there has been compliance with the duty-to-notify-and-assist provisions of the Veterans Claims Assistance Act (VCAA) because, even if there has not been, this is merely inconsequential and, therefore, at most harmless error. 38 C.F.R. § 20.1102; cf. Bernard v. Brown, 4 Vet. App. 384 (1993). See also, Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006); Pelegrini v. Principi, 18 Vet. App. 112, 120 - 21 (2004) (Pelegrini II). The veteran claims that his neck and back disorders are residuals of multiple fragment wounds from a mine explosion in July 1968 during his tour in Vietnam. And resolving all reasonable doubt in his favor, the Board finds that the medical and other evidence supports granting these claims. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including degenerative joint disease, i.e., arthritis, will be presumed to have been incurred in service if manifested to a compensable degree (of at least 10 percent) within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2007). The veteran's service medical records show he sustained shell fragment wounds as a result of a mine explosion in Vietnam on July 21, 1968. He was initially treated at the 12th Field Evacuation Hospital at Chu Chi, then at Camp Zama in Japan, and lastly at the United States Naval Hospital in Chelsea, Massachusetts. Prior to the Board's remand, the available records indicated that as a result of the mine explosion he had suffered a fracture of the right ulna, a perforated right eardrum, and shell fragment wounds to the right lateral gluteus maximus, the superior lateral thigh, and the superior posterior thigh. The shell fragment wounds were described as healed when he was admitted to the Chelsea Naval Hospital on August 8, 1968. The range of motion of all joints was within normal limits, with the exception of the right arm. His treatment at the Chelsea Naval Hospital was for the right arm fracture, with no reference to any other disabilities. In April 1969 he complained of right arm and shoulder pain associated with lifting heavy objects. Examination on separation from service in July 1969 showed no abnormalities, other than scars from the shell fragment wounds and the comminuted fracture of the right ulna. At that time he denied any history of recurrent back pain, frequent or severe headaches, lameness, or neuritis. (On the other hand, he also denied any history of broken bones.) On remand VA obtained missing records concerning the veteran's treatment for the injuries he had sustained in the mine explosion. These records show treatment for multiple shell fragment wounds to his head, back, chest, right arm and both legs. Indeed, a July 1968 service medical report specifically mentions treatment for his back from shrapnel wounds at the right costovertebral angle. As important, the separation examination in July 1969 noted multiple scars, including on his posterior chest (i.e., back). His military service ended in September 1969. When first claiming entitlement to VA compensation benefits in December 1969, the veteran did not make any reference to neck or back complaints or related consequent disability from the blast injury in service. A VA examination in February 1970 revealed the scars from the shrapnel wounds and ulnar fracture, but no other abnormalities. He again claimed entitlement to compensation benefits in March 1977, and again with no reference to neck or back disorders. The initial documentation of a neck or back disorder occurred in December 1998. He then reported a two to three week history of neck pain, primarily on the right. When examined for degenerative joint disease of the cervical spine at the VA medical center (VAMC) in March 2001, he reported having no recent accident or injury "but [mentioned that he had] worked as a police officer and with multiple past injuries." He initially claimed entitlement to service connection for neck and back disorders, which have been diagnosed as degenerative joint and disc disease of the cervical, thoracic, and lumbosacral spine, in March 2001. Since his current assertion of having suffered from neck and back pain since the August 1968 injury is contradicted by the more contemporaneous records, the Board finds that his report of continuing symptomatology since service is not credible. See Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). VA furnished a compensation examination in August 2001 to determine whether the veteran's neck and back disorders are attributable to his military service. The evaluating physician opined that the current neck and back disorders are not related to the service-connected shell fragment wounds. The VA examiner explained that the shrapnel wounds to the veteran's upper right chest were not near the cervical spine or at the base of the spine area. In addition, the shrapnel wounds over the lower hip, the lower right side above the hip and calf areas are not related to his present back problems. The VA physician did not provide an opinion, however, on whether the current disabilities were traceable to the trauma of the in-service mine explosion itself. The veteran submitted a positive nexus opinion from his private physician, Dr. G.M.W., a Board certified neurologist. This physician opined in September 2003 and December 2006 that the veteran's severe spine injuries (cervical and lumbar) are due to the shrapnel wounds from the mine explosion in July 1968 during his tour in Vietnam. In sum, the veteran presented opinions from his private neurologist indicating that his currently diagnosed neck and back disorders are related to the injuries he sustained as a result of the mine explosion. This physician did not, however, provide any rationale for his opinion. Consequently, the Board's October 2006 remand directed the AMC to provide the veteran a VA orthopedic examination to determine the etiology of the currently diagnosed neck and back disorders. The designated examiner reviewed the claims file for the veteran's pertinent medical and other history, including the records concerning the blast injury in service. During the examination, the examiner observed the veteran still had shrapnel wounds and shrapnel within the right paraspinal upper thoracic space, just medial to the medial border of the scapula on the right. An MRI in October 2003 had revealed a herniated nucleus populus at C4, C5, C6 and C7. It also had showed a herniated nucleus populus at T9, T10, and bulging nucleus pulposus at T8 and T9, and that there was a bulging disc at L3, L4 and L4-L5. Based on a review of the service medical records and an examination of the veteran, this VA examiner opined that it is more likely than not the veteran's current complaints of cervical spine degenerative disc disease and lumbar spine degenerative disc disease are related to the blast injury during service. Moreover, the veteran also submitted an independent medical opinion (IMO) from Dr. C.N.B., a private physician. This physician indicated that he, too, had reviewed the veteran's claims file for the pertinent medical and other history, and he provided the rationale for his positive nexus opinion. Dr. C.N.B. opined that the veteran's cervical and lumbar spine degenerative disc problems are due to the blast injuries he sustained in service. The examiner's rationale noted that the veteran was directly exposed to a major blast injury resulting in a head injury with damage to his helmet, that he lost consciousness, that he was transported to larger regional hospitals, that pictures clearly show the residuals of three shrapnel wounds (scars) to his back and that blast injuries are known to accelerate the onset of the degenerative process of the spine. Dr. C.N.B. also indicated disagreement with the August 2001 VA examiner's opinion because the August 2001 examiner did not have the benefit of the new imaging studies of 2003, lay testimony, and new clinical evidence. Dr. C.N.B. further pointed out that the VA examiner did not note the veteran had head or back injuries from shrapnel, nor did he comment on the association between head and spine injuries. In deciding claims, it is the Board's responsibility to weigh the evidence (both favorable and unfavorable) and to decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. See Schoolman v. West, 12 Vet. App. 307, 310-311 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is also mindful that it cannot make its own independent medical determination and there must be plausible reasons for favoring one medical opinion over another. Evans at 31; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Here, there are legitimate reasons for accepting the March 2008 VA physician's opinion and the two private physician's opinions over the opinion to the contrary, the main justification being that the March 2008 VA and May 2008 physicians reviewed the veteran's entire claims file for the pertinent medical and other history, but most notably inclusive of the recent physical examination and all of the SMRs. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims file and the degree of detail provided in the opinion). As pointed out, these additional service medical records showing treatment for back and head injuries did not become part of the veteran's claims file - for consideration, until after the Board's October 2006 remand. Hence, these two favorable opinions represent the most probative determination of record on the etiology of his neck and back disorders, whereas the August 2001 opinion did not have the benefit of his complete SMRs. The August 2001 VA examiner also did not have the benefit of the new imaging studies of 2003 (MRI), or lay testimony, nor did he note the head or back injuries the veteran had sustained in service that were evident from physical examination. Consequently, the March 2008 VA and May 2008 private physician's opinions are well supported and should be entitled to greater probative weight. See Elkins v. Brown, 5 Vet. App. 474, 478 (1993); Owens v. Brown, 7 Vet. App. 429 (1995); Swann v. Brown, 5 Vet. App. 229, 233 (1993). Accordingly, in this case there is a medical diagnosis of a current disability affecting the neck and back, diagnosed as degenerative disc disease of the cervical and lumbar spine, and competent and probative evidence directly attributing this condition to the veteran's active military service - indeed, to his service in combat. See 38 U.S.C.A. § 1154 and 38 C.F.R. § 3.304(d) providing a somewhat lesser burden of proof in this circumstance. Although the medical evidence does not establish continuity of symptomatology, the record shows he sustained head and back injuries from the blast explosion in July 1968 and there are three medical opinions linking his current neck and back disorders to his service, and in particular to that incident and the resulting injuries he sustained. Thus, affording the veteran the benefit of the doubt, the Board finds that the requirements for service connection for neck and back disorders are met. See 38 C.F.R. § 3.102, Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The claim for service connection for a neck disorder is granted. The claim for service connection for a back disorder also is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs