Citation Nr: 0918368 Decision Date: 05/15/09 Archive Date: 05/21/09 DOCKET NO. 98-19 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a left arm disability. 3. Entitlement to service connection for a cervical spine disability. 4. Entitlement to service connection for a thoracic spine disability. 5. Entitlement to service connection for a lumbosacral spine disability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The Veteran had active duty from September 1967 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) from a February 1998 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. Degenerative joint disease of the left shoulder is related to service. 2. The Veteran does not have a left arm disability related to service. 3. Chronic cervical spine disability was not exhibited in service, degenerative joint disease of the cervical spine was not manifested within the first post service year, and cervical spine disability is not otherwise related to active duty. 4. Chronic thoracic spine disability was not exhibited in service, degenerative joint disease of the thoracic spine was not manifested within the first post service year, and thoracic spine disability is not otherwise related to active duty. 5. Chronic lumbosacral spine disability was not exhibited in service, degenerative joint disease of the lumbosacral spine was not manifested within the first post service year, and lumbosacral spine disability is not otherwise related to active duty. CONCLUSIONS OF LAW 1. Degenerative joint disease of the left shoulder was incurred in service. 38 U.S.C.A. §§ 1110; 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2008). 2. A left arm disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2008). 3. Chronic cervical spine disability was not incurred or aggravated in service and degenerative joint disease of the cervical spine may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2008). 4. Chronic thoracic spine disability was not incurred or aggravated in service and degenerative joint disease of the thoracic spine may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2008). 5. Chronic lumbosacral spine disability was not incurred or aggravated in service and degenerative joint disease of the lumbosacral spine may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Without deciding whether the notice and development requirements of VCAA have been satisfied in the present as to issue of service connection for a left shoulder disability, it is the Board's conclusion that the VCAA does not preclude the Board from adjudicating this claim. This is so because the Board is taking action favorable to the Veteran on this issue and a decision at this point poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). In correspondence dated in March 2004 and February 2005, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2008). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. In light of the Board's denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to him under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2008). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. The Veteran has been medically evaluated in conjunction with his claim. Thus, the duties to notify and assist have been met. Analysis The Veteran essentially contends that he has left shoulder, left arm, cervical spine, thoracic spine, and lumbosacral spine disabilities as a result of a motor vehicle accident in service. When seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). If arthritis becomes manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption does not apply in the present case as arthritis did not manifest until many years after discharge, as discussed below. Left Shoulder and Left Arm The report of the May 1967 enlistment examination noted a prior fracture of the Veteran's clavicle but did not indicate whether the fracture was to his right or left clavicle. The physical examination conducted at enlistment demonstrated that the Veteran's upper extremities were normal. Additional service treatment records reflect treatment for injuries sustained in a car accident in March 1968. A physical examination conducted on the day after the accident showed, in pertinent part, limitation of motion of the Veteran's left arm. There were no other complaints of, treatment for, or findings of a left shoulder, or left arm, disability in the service treatment records. The separation examination which was conducted in June 1971 demonstrated that the Veteran's upper extremities were normal. According to post-service treatment records, in November 1985, the Veteran sought treatment for complaints of a constant ache radiating down his left posterior shoulder, triceps, and ulnar forearm to the base of his left thumb. He reported that these symptoms had begun in the spring of 1985 without specific injury. The examiner found no organic diagnosis associated with the Veteran's complaints of left arm pain and numbness. A physical examination conducted in August 1995 pursuant to the Veteran's claim for Social Security Administration disability benefits demonstrated a moderate degree of impairment from incoordination of his left arm and left hand. At a February 1996 private outpatient treatment session, the Veteran complained of weakness of his left arm. At a January 1999 VA outpatient treatment session, the Veteran described left shoulder pain for the past 4-5 years but denied experiencing any trauma. At a July 1997 VA general medical examination, the Veteran maintained that he injured his left arm and left shoulder in the in-service car accident in 1968 and that, as a result of that injury, he experiences weakness, soreness, and pain especially in his left shoulder area as well as tingling sensations down into his hand. A physical examination conducted on the Veteran's left shoulder and left arm in July 1997 demonstrated tight muscles from his neck across to his shoulder (which, according to the examiner, seemed "to hold the shoulder upward"), a tight trapezius, and limitation of motion of his left upper extremity with pain. X-rays taken of the Veteran's left shoulder at that time showed mild degenerative arthritis. In pertinent part, the examiner diagnosed an injury to the left arm and left shoulder with some limitation of motion and stated that this condition was "very difficult to assess." Subsequent medical records reflect treatment for, and evaluation of, type 2 left acromion process (in May 1998), longstanding diffuse aches/pains in the left shoulder (in February 2000), left shoulder pain (in December 2000 and January 2002), left arm pain (in December 2003), and chronic left upper extremity pain (in May 2004). In a December 1997 addendum, the examiner who conducted the July 1997 VA general medical examination expressed his opinion that the Veteran's left shoulder and left arm problems "could be more probably than not related to the auto accident in 1968 as [his] problems and complaints have been steady over the years and flare-ups have caused incapacitation" for him." A February 1998 VA medical opinion is of record. Upon review of the claims folder and citing to the pertinent service treatment records regarding the automobile accident in service, the examiner opined that it was not at all probable that the Veteran's left arm and shoulder disability was related to service. At a January 2002 VA examination, the examiner found "nothing [in the service treatment records] to suggest that . . . [the Veteran] injured his left shoulder [during active military duty] except that . . . he had pain in his left arm." Because the physical examination conducted after the car accident in 1968 provided no findings of left shoulder pathology, the examiner concluded that "it . . . [was] unlikely that . . . [the Veteran's] left shoulder pain is due to his 1968 accident." A private neurologist who reviewed the claims folder in March 2006 noted the July 1997 radiographic findings of mild degenerative arthritis of the Veteran's left shoulder. Despite being asked to do so, this physician did not address the etiology of degenerative arthritis of the left shoulder. Pursuant to the Board's October 2008 request, a Veteran's Health Administration (VHA) opinion was rendered in December 2008. Based upon a review of the claims folder, the examiner noted the while the Veteran's examination report at service separation showed that the upper extremities were assessed as normal, it was possible that he recovered from his acute injuries suffered during his motor vehicle accident but over the years sustained degenerative changes secondary to the initial injury. Noting the lack of clear evidence of another injury besides the motor vehicle accident to the left upper extremity, the examiner concluded that some of the Veteran's left arm problems (including pain, limitation of motion, and mild shoulder arthritis) were more likely than not caused by his motor vehicle accident in service. The examiner added, however, that the neurological symptoms could not be attributed to the same accident. In order for the veteran to prevail, it is only necessary that the probative evidence for and against the claim be in relative equipoise. The favorable evidence need not outweigh that which is unfavorable for the veteran to be entitled to the benefit of the doubt. To deny the claim would require that the evidence preponderate against it. Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). The weight to be attached to relevant evidence is an adjudication determination. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board must assess the weight and credibility to be given to the evidence. Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). The evidence, viewed liberally, is at least in equipoise. That is, there is at least a 50 percent probability or greater that the Veteran left shoulder disability is etiologically caused by the veteran's in-service accident. The Veteran is, therefore, entitled to the benefit of the doubt. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board finds that the criteria for service connection for degenerative joint disease of the left shoulder are met. However, there is no indication of a left arm disability that is related to service. While there are notations as to symptoms of limitation of motion and pain, there has been no diagnosis of any left arm disability. Service connection presupposes a diagnosis of a current disease. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Symptoms alone, without a diagnosed or identifiable underlying malady or condition, do not in and of themselves constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Therefore, service connection for a left arm disability is denied. Cervical Spine, Thoracic Spine, and Lumbosacral Spine As noted above, service treatment records show that the Veteran was involved in a motor vehicle accident in 1968. The records show that he complained of neck pain following the accident. In April 1968, an impression of acute cervical sprain was noted. During the same month, he was advised to wear a Thomas collar for two weeks. When he was reevaluated two weeks later, he was told that he no longer needed to wear the collar. There were no other records pertaining to the spine in service. The examination at service discharge showed a normal spine evaluation. Relevant post-service medical records include a January 1978 VA examination report which noted the Veteran's complaints of pain in the lower back and neck. A January 1978 private treatment record noted that the Veteran had an acute onset of low back pain after pushing a car out of the mud the day before. It was also noted that the Veteran had a long history of back problems and a diagnosis of lower lumbar strain was noted. A September 1980 record noted there was minimal relative narrowing at the L4-5 which could be indicative of very early degenerative disc disease or disc slippage. A record dated in September 1980 noted that he complained of back pain for a month after lifting some logs. At that time, the Veteran indicated that he had fallen on his right hip and lower back eight years before. In August 1983, it was noted that the Veteran had an acute strain superimposed on chronic low back syndrome. In September 1983, it was noted that the Veteran had recently reinjured his back while lifting a tool box at work. A November 1985 treatment record noted that the Veteran had a previous back injury in the late 1970's. He was working around a homestead lifting logs and he noticed a gradual onset of low back soreness without specific injury. With treatment, he recovered and did not have any further problems. It was also noted that he had been in a car accident (fender bender) in 1980. The Veteran was unsure whether his back problems then were due to the accident as it was the same time he was doing construction work on the homestead. He denied any prior neck symptoms. It was further noted that the Veteran had a low back injury while lifting on the job in August 1983. He returned to work; and a diagnosis of resolved status-post lumbar strain industrially related was noted as his examination was normal. A February 1989 record noted that Veteran had a recent back strain flare-up when he was hiking through deep snow. An April 1994 VA treatment record noted that the Veteran had back problems and that he had been unable to walk for one week in the fall of 1993. A July 1997 VA examination report noted that the Veteran indicated that as a result of his service accident in 1968 he had neck and spinal pain. Diagnoses of cervical strain, probably muscle spasm; and lower back pain were noted. In a December 1997 addendum, the examiner who conducted the July 1997 VA general medical examination expressed his opinion that the Veteran's cervical, thoracic, and lumbar spine problems "could be more probably than not related to the auto accident in 1968 as [his] problems and complaints have been steady over the years and flare-ups have caused incapacitation" for him." A February 1998 VA medical opinion is of record. Upon review of the claims folder and citing to the pertinent service treatment records regarding the automobile accident in service, the examiner opined that it was not at all probable that the Veteran's degenerative joint disease of the cervical, thoracic, and lumbosacral spine was related to service. In letters dated in December 2000 and January 2001, W. Henze, M.D. noted the Veteran's 1968 motor vehicle accident and indicated that he agreed with the findings cited in the 1997 VA examination report. He stated that the Veteran's ongoing problems with his neck and thoracic spine were probably related to that incident. A January 2002 VA examination report which was completed in conjunction with review of the claims folder is also of record. The examiner outlined the Veteran's service treatment records as they pertained to his motor vehicle accident. In noting degenerative changes of the cervical spine probably related to age, the examiner stated that the Veteran had a history of cervical spine injury in service which was 32 years before, and which did not show evidence of fracture of the neck. The examiner added that there were no records showing that this continued to be problematic in-service. He opined that there was less than a 50 percent chance that the Veteran's disability was related to in-service cervical trauma. Likewise, in assessing thoracic spine pain, the examiner indicated that he did not think that this was related to the Veteran's accident as there were no records to substantiate that. In assessing lower back pain syndrome, the examiner opined that this was unrelated to service as demonstrated by the record of his doctors' visits. The examiner pointed out that there was nothing in the records showing that the Veteran had a low back injury or strain as a result of the accident. A February 2005 report from C.N. Bash, M.D. noted that in reviewing the Veteran's medical records, he found it was likely that the Veteran's auto accident in service caused his current degenerative changes in the spine. Dr. Bash cited to the history of the Veteran's disability as well as the medical reference he used in reaching his conclusion. A May 2006 report from Dr. Bash noted that he was a board certified radiologist and neuroradiologist. A September 2005 report from Dr. Bash noted that he had reviewed the claims folder and it was his impression that the Veteran's degenerative changes of the cervical, thoracic, and lumbar spines were related to his motor vehicle accident in service. In so stating, Dr. Bash reasoned that a motor vehicle accident was a significant trauma to the neck and back. He cited to a medical treatise which he used in reaching his opinion. In March 2006, an independent medical opinion (IME) was rendered in this matter. Upon review of the claims folder, the examiner outlined the relevant history of the Veteran's disability. The examiner noted that the first incident of back pain after service discharge was in 1978 when he was pushing his car out the mud. He also stated that after the 1968 accident, the Veteran did not complain of pain in the neck and lower back area until 1978. The examiner added that the subsequent history of lower back pain and lower extremity pain in 1978 was from a separate incident (pushing the car) when he had the onset of low back pain. There were no complaints following service discharge until the 1978 incident. In noting the various degenerative changes of the cervical, thoracic, and lumbosacral spine and based on the Veteran's history and medical records, the examiner found that these changes were in no way related to service. In a May 2006 report, Dr. Bash reiterated his position that the Veteran's spine disabilities were related to his in- service accident. In addition to citing to his expertise and competency, Dr. Bash reasoned that the significant trauma of the car accident affected the whole spine even if treatment at the time was only focused on the cervical spine. He indicated that the Veteran was in a cervical collar. In response to the IME's opinion, Dr. Bash noted that the examiner failed to take into account the Veteran's age in 1980 when he showed signs of degenerative changes and his recurrent symptoms following service. He further noted that when the Veteran presented for treatment in 1978, he indicated a long history of back trouble and not just immediate onset. Dr. Bash also pointed out the Veteran and his wife's statements as to symptoms after service. He opined that the Veteran's degenerative changes at the age of 32 were out of proportion to his age and therefore likely due to his service injury as there was no indication of an intervening spine injury. He further stated that the Veteran's degenerative changes were accelerated by his in- service injury. The Board finds that a clear preponderance of the evidence is against a finding that current spine disability is related to active duty. The Veteran was treated for neck and back pain shortly after the motor vehicle accident in service, but this apparently resolved as there was no follow-up treatment during the remainder of service. The service discharge examination was negative for abnormality. Degenerative joint disease was not exhibited in service or within the first post service year. There was a mention of neck and low back pain on the VA examination report of 1978, but the Veteran apparently failed to report for that examination. Clinical records from 1978 reflect that the Veteran injured his back early that year. He did not claim compensation for spinal disability when he filed claims in 1977 and 1987, though he was obviously aware of the claims process. The Board notes the Veteran's claim that his back and neck continued to bother him since the injury in service, but does not find it credible that chronic spinal disability dates from service. The normal spinal examination at service discharge and the first showing of spinal problems after service following intervening injury weighs against more recent accounts that chronic spinal disability initiated in service. The long history of back problems reported in 1978 is vague and does not point to service onset. It is also pertinent to note that the clinical entry at that time noted an acute onset of left leg numbness and radiating pain. This seems to suggest a new type of pain. It lends support to the independent medical expert opinion and that of VA examiners that the injuries following service may have been implicated in the onset of degenerative changes in the spine, which were not service related. Dr. Bash found the onset of degenerative changes in the spine unusual and suggested that this supported the fact that they were due to antecedent injury. However, the degenerative changes were not found until his post service injury. He does not explain how the onset of degenerative changes is unusual at age 32 but not unusual for someone almost a decade younger. The Board has reviewed the opinions of record and finds the independent medical expert opinion to be the most probative. While Dr. Bash offers rationale for how degenerative changes in the spine could be related to service and cites to medical authority for this proposition; the independent medical expert notes that findings of the degenerative changes in the spine were not made in service or until the intervening injuries that followed service. It includes a reasoned analysis and is factually accurate, fully articulated, and contains sound reasoning for the conclusion. For these reasons, the Board finds that a clear preponderance of the evidence is against a finding that chronic spinal disability had its onset in service or is otherwise related to active duty. ORDER Service connection for a left shoulder disability is granted. Service connection for a left arm disability is denied. Service connection for a cervical spine disability is denied. Service connection for a thoracic spine disability is denied. Service connection for a lumbosacral spine disability is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs