Citation Nr: 1000197 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 08-09 810A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for cervical spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1990 to January 1994 and from August 2002 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in November 2007, a statement of the case was issued in March 2008, and a substantive appeal was received in April 2008. The Veteran testified at a Board hearing at the RO in October 2009. The Board notes that the Veteran submitted additional evidence after receiving the statement of the case; however, the Veteran waived RO consideration of this evidence during his October 2009 hearing. As such, the Board has considered the new evidence in the following decision. FINDING OF FACT The Veteran's chronic cervical strain and cervical disc degeneration are causally related to his active service. CONCLUSION OF LAW Cervical spine disability, described as chronic cervical strain and cervical disc degeneration, was incurred in the Veteran's active service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The issue before the Board involves a claim of entitlement to service connection for a cervical spine disability. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 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). Service treatment records are silent regarding any complaints, treatment, or diagnoses of a cervical spine disability. Service treatment records do show that the Veteran was involved in a motor vehicle accident in June 2003 during which the veteran was a passenger in a Hum-V that rolled over. During the accident the Veteran sustained injuries to his thumb and his head. Although the medical records fail to show any complaints of neck pain, the Veteran testified in an October 2009 hearing that the reason for the omission was the focus on his other injuries for which he required surgery and painkillers. The Veteran also noted that he believed his neck pain would resolve on its own, but rather that it increased in severity over the years. The Veteran was discharged as the result of a medical evaluation board in May 2004 due to the severity of his thumb disability. The Board failed to address any other medical issues at that time. The Board notes at this point that service connection has already been established for other disability resulting from the June 2003 accident. The only question before the Board at this point is whether service connection for cervical spine disability is also warranted. Post-service, the Veteran received a general medical VA examination to address other claimed disabilities in October 2004, only a few months after his discharge from service. At that time the examiner noted pain and limitation of motion of the cervical spine; however, the examiner did not provide a diagnosis or nexus opinion, as the issue of a cervical spine disability was not being addressed. Post-service records show treatment for a cervical spine disability from January 2006 through April 2006. These records include an orthopaedic evaluation and an MRI. In an April 2006 report, Clark S. Metzger, M.D. reports that x-ray and MRI studies reveal, among other things, chronic cervical strain and cervical disc degeneration. A fusion at C3 and C4 was also noted, but determined to be congenital. Service connection is not available for congenital defects. 38 C.F.R. § 3.303. However, the question remains whether the reported chronic cervical strain and cervical disc degeneration are related to the inservice accident. In December 2006, the Veteran attended a pain management clinic regarding his cervical spine pain. After the examination, the examiner described the Veteran as a pleasant but unfortunately 36-year-old gentleman status post motor vehicle accident resulting in chronic cervical facet syndrome. In October 2009, the Veteran submitted a letter addressing the origin of his cervical disability from the same orthopaedic doctor who treated him in April 2006. The examiner noted that the Veteran had no neck pain prior to the 2003 motor vehicle accident. He also noted that the Veteran has been worked up for this by local pain management physicians and is continuing to undergo treatment for it. The examiner reported radiographic findings of early disc degeneration at C5, C6 with early foraminal stenosis. The examiner concluded that given the Veteran's lack of symptomatology before the accident and the continued symptomatology uninterrupted since the accident, he considers the accident to be the reason for his current neck problem. The Board finds that entitlement to service connection for a cervical spine disability is warranted. The record contains evidence of a significant motor vehicle accident while in service, which resulted in a head injury. The Veteran has testified that he has experienced pain and discomfort continuously since the accident. The Board finds the Veteran's testimony in this regard to be credible. Further, a VA examiner found pain and limitation of motion within months of the Veteran's discharge. Finally, a pain management doctor and an orthopaedic doctor both concluded that the Veteran's current cervical spine disability was due to the Veteran's in-service disability. The orthopaedic examiner addressed radiographic findings and included a rationale in his opinion. As such, the Board finds that the evidence shows an injury while in service and a chronic disability resulting from that injury with continuity of symptomatology. 38 C.F.R. § 3.303. In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159 (2008). The Board notes that an RO letter dated November 2006 informed the Veteran of the manner in which disability ratings and effective dates are assigned. The RO will take such actions in the course of implementing this grant of service connection, and the Veteran may always file a timely notice of disagreement if he wishes to appeal from those downstream determinations. ORDER Entitlement to service connection for cervical spine disability, described as chronic cervical strain and cervical disc degeneration, is warranted. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs