Citation Nr: 1040948 Decision Date: 11/01/10 Archive Date: 11/12/10 DOCKET NO. 03-34 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD C. dR. Dale INTRODUCTION The Veteran served on active duty from January 1954 to January 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2008, the Board issued a decision which denied the Veteran's request for service connection for a cervical spine disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In July 2009, based on an unopposed Motion for Remand by the Secretary, the Court issued an Order vacating and remanding the Board's decision for compliance with the instructions within the Motion for Remand. According to the Secretary's Motion for Remand, the Board failed to reconcile the fact that the Veteran filed his initial claim for service connection for a cervical spine disability in 1964 - one year prior to the 1965 post-service accident, which the September 2007 VA examination relied on as the most probative evidence of record. Motion for Remand at 2. The Board also did not adequately address the credibility of the Veteran's lay statements that he injured his cervical spine in service and continued to suffer residuals of that injury. Motion for Remand at 2. FINDING OF FACT The Veteran has current medical diagnoses of degenerative joint disease of the cervical spine and chronic cervical strain which have been linked by competent evidence to active military service. CONCLUSION OF LAW A cervical spine disability, to include degenerative joint disease of the cervical spine and chronic cervical strain, was incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for a cervical spine disorder. The Veteran contends that he suffered an injury to his cervical spine in service as the result of a parachute jump. He further contends that he continues to suffer from residuals of that injury. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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 injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment records (STRs) show that the Veteran was treated for complaints related to injuries suffered during a parachute jump in November 1954. An Orthopedic Clinic consult, dated that same month, noted that the Veteran had injured his right anterior chest wall on November 1, 1954, when he jumped and rammed his right knee into his chest wall. The Veteran complained of pain in the region of the injury. There were no entries to show any type of cervical spine disorder or injury despite the trauma associated with the jump injury in November 1954. A January 1956 discharge physical examination noted no mention of any type of cervical spine disorder. The Veteran reported that he was hospitalized for his injury at the time it occurred and was placed in a cervical collar. There is no evidence of any hospitalization relating to treatment for a cervical spine injury of any type or any other injury. In February 1956 the Veteran was accorded a compensation and pension (C&P) examination. During the examination the Veteran complained of pain in his lower part of his back and the right side of his chest. During the examination, part of the x-ray equipment fell on the left side of the Veteran's head. At that time there was no loss of consciousness. A small area of contusion and pain over the left parietal area was noted on examination. A neurological examination was normal and x-rays of the skull were negative. There was no noted injury to the neck or cervical spine during the accident. Physical examination revealed the head, face, and neck as normal. Post-service medical records include an October 1964 diagnosis of osteoarthritis of the cervical spine. A September 1968 x-ray report indicates loss of the normal cervical lordosis with minimal degenerative type change and encroachment on neuroformina on the right. The Veteran was admitted in September 1968. At the time of admission, the Veteran reported that he fell three years ago and hit his head against a wall. He had no loss of consciousness, weakness in the extremities, or neck pain. He reported that he had a stiff neck the next day and low cervical pain radiating to the left shoulder, down the back, and occasional pain radiating to the head. The examination revealed the neck was immobile and in no acute distress. The motion of the neck was limited and movements produced pain in the left low cervical region. An x- ray revealed a normal cervical myelogram. In April 1973 the Veteran was diagnosed with degenerative joint disease of the lower cervical spine. A November 1974 x-ray showed slight narrowing of the C5-C6 disc space with moderate anterior osteophytosis at C4-C6. There were no other abnormalities seen and the reviewer noted there was no significant change from an April 1973 x-ray. A private medical record dated in July 29, 1996, found that the Veteran presented with a long history of neck and lower back pain. The pain had progressed in the last year. He complained of pain that radiated up to the occiput and down to the shoulders that also caused generalized weakness of both hands, clumsiness of the hands, and paresthesias to both hands. He also complained of difficulty with ambulation and sensation of not knowing where his legs or hands were. There was no history of a cervical spine injury in service, or at any other time. The diagnosis was cervical spondylosis with spinal stenosis, and cervical myelopathy. The physician stated the Veteran had a significant problem and was basically becoming paraparetic and this would probably be a progressive disorder. Surgery was questionable due to prior cardiac-related surgeries and problems. In a follow up note dated in September 23, 1996, Dr. Dwyer diagnosed the Veteran with cervical myeloradiculopathy, secondary to anterior osteophyte at C2-C3. In October 2002 the Veteran was accorded a C&P bones examination. During the examination the Veteran reported that he injured his neck and back during a parachute jump in service. He also reported that he was knocked unconscious by an x-ray tube that landed on him and thus developed severe pain in his neck. He reported that he had surgery on his neck and suffered from some paralysis secondary to the surgery. The examiner recommended a further workup for the Veteran's neck and back problems. Letters dated in February and March 2004 letter from a neurosurgeon opined that the Veteran suffered a severe neck injury as a result of a parachuting exercise while in the military. He further stated that the effects of the injury progressed over the Veteran's lifetime due to post-traumatic arthritic changes and similar effects of the aging process. He based this opinion on a review of private medical records and the Veteran's service records. He stated that at the time the Veteran sought treatment from Dr. Dwyer, he was at the beginning of quadripesis, which is a loss of sensation of the hands and difficulty walking. The physician opined that, had Dr. Dwyer not attempted the decompressive laminectomies procedure on the Veteran, it was highly probable that the Veteran's condition would have progressed to complete quadriplegia. During an October 2004 hearing before a Decision Review Officer (DRO), the Veteran stated that during a parachute jump he hit the ground and his knees hit his chest and knocked the wind out of him. He testified that he was taken to Fort Benning Hospital and was issued a collar for approximately a month to six weeks. He further testified that he has had limited motion in his neck since that time. In March 2005 the Veteran was accorded a C&P spine examination. During the examination the Veteran reported throbbing pain in his neck. He also reported that he could not lift his right arm above his head. The examiner noted that the Veteran's condition was complicated by the fact that the Veteran underwent a cervical laminectomy and fusion in 1997 for treatment of cervical myelopathy from degenerative spondylosis and stenosis. At that time, there was a spinal cord injury interoperatively and the Veteran awoke quadriplegic. The examiner noted that many of the Veteran's complaints and disability related to the injury in 1997 in connection with his cervical surgery. The diagnoses were cervical spondylosis and stenosis, status-post cervical fusion, and a cervical spinal cord injury related to his cervical surgery. He stated that there was scant new evidence to suggest that any new opinion could be rendered because STRs were silent for complaints of neck pain or problems around the time of his parachuting accident. He opined that it was less likely than not that the Veteran's neck condition and all the sequalae of his cervical stenosis, his cervical operation, and his spinal cord injury related to his operation are related to his military service. In September 2007 the Veteran was accorded a C&P spine and miscellaneous neurological disorders examination. During the examination the Veteran reported that his neck condition was increasing in severity. Imaging of the cervical spine revealed no acute fractures, dislocations, bony destructive process, or prevertebral soft tissue swelling. The diagnoses were old compression of C5 vertebral body, calcification of posterior ligaments in the neck, degenerative joint disease of the cervical spine, and chronic cervical strain. He was also diagnosed with central cord syndrome status-post cervical spine surgery. The examiner stated that STRs do not mention any neck symptoms or complaints at the time of the reported parachute jump in 1954. Moreover, there were no records to support complaints of, diagnosis of, or treatment for any neck condition post discharge. She opined that it was not likely that the Veteran's current neck condition was due to the parachute jump in 1954 and stated that it was more likely due to an accident in 1965 described by the Veteran during which he fell and hit his head against a wall. A VA medical opinion issued in December 2009 found that there was no disability caused or resulting from a February 1956 accident during which a part of the x-ray equipment fell on the left side of the Veteran's head. At that time there was no loss of consciousness. A small area of contusion and pain over the left parietal area was noted on examination. A neurological examination was normal and x-rays of the skull were negative. There was no noted injury to the neck or cervical spine during the accident. Moreover, there was no documentation of any post traumatic headaches for many years after the incident. The physician also stated that the Veteran's cervical spine condition started many years after the incident. She opined that the Veteran's claimed migraine headaches and cervical injury were not caused by the x-ray equipment falling on the Veteran's head. In a letter dated in August 2010, a private physician noted that the Veteran underwent cervical spine surgery in 1997, which left him with quadriparesis and a surgical site of deformity. He stated that the Veteran had motor difficulties with the upper extremities along with spasticity of the upper and lower extremities. He opined that the Veteran's cervical spine disease was due to the 1956 parachute incident reported by the Veteran. The Motion for Remand directs that the Board should adequately address the credibility of the Veteran's lay statements. Motion for Remand at 2. Recently, the Federal Circuit issued Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), which stated that 38 U.S.C. § 1154(a) requires that the VA give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability. See also Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Moreover, the VA may not simply disregard lay evidence because it is unaccompanied by contemporaneous medical evidence. The Veteran reports that he injured his cervical spine as a result of parachute jump in 1956. Although the STRs are negative for complaints of, treatment for, or a diagnosis of a neck condition, the Veteran is nevertheless competent to report that he hurt his neck in a parachute jump and that he had continuing symptoms since that time. There is no evidence to refute his lay assertions. The VA examiners in examinations dated in March 2005 and September 2007 opined that the Veteran's neck condition was not related to service. Letters from private physicians dated in February 2004, March 2004, and August 2010 opined that the Veteran's neck condition resulted from a parachuting exercise while in military service. In particular, the August 2010 statement considered the Veteran's report of the injury in service and reports of continuing pain thereafter and provided an opinion that the current cervical spine disability is related to the injury in service. Accordingly, the Board finds the evidence to be in equipoise as to whether the Veteran's cervical spine condition is related to service, and resolves all reasonable doubt in favor of the Veteran. Accordingly, service connection for a cervical spine disorder is warranted. 38 C.F.R. §§ 3.102, 3.303. The RO has substantially satisfied the notice and duty to assist provisions of 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant given the favorable nature of the Board's decision. ORDER Service connection for a cervical spine disorder is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs