Citation Nr: 1118694 Decision Date: 05/16/11 Archive Date: 05/26/11 DOCKET NO. 09-18 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for degenerative disc disease of the cervical spine, claimed as a neck condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Dr. C. Bash ATTORNEY FOR THE BOARD T.S. Willie, Associate Counsel INTRODUCTION The appellant had active service from December 1989 to November 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Baltimore, MD Department of Veterans Affairs (VA) Regional Office (RO). Additional pertinent evidence was received from the appellant in March 2011. As the appellant has waived initial RO review of this evidence, the Board will consider the new evidence. 38 C.F.R. § 20.1304 (2010). The issue of entitlement to an increased rating for left shoulder tendonitis, currently rated as 20 percent disabling, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT Degenerative disc disease of the cervical spine is attributable to service. CONCLUSION OF LAW Degenerative disc disease of the cervical spine was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Legal Criteria Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). Service connection may 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) (2010). Certain chronic diseases, such as arthritis, may be service connected if incurred or aggravated by service or manifested to a degree of 10 percent disabling or more within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2010). For a 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 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. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2010). The Board notes that the provisions of 38 U.S.C.A. § 1154(b) do not apply, as it has not been claimed that the disability was incurred while engaging in combat. Analysis The appellant has appealed the denial of service connection for degenerative disc disease of the cervical spine. After review of the evidence, the Board finds in favor of the claim. In this case, the Board is presented with positive and negative evidence. The positive evidence includes service treatment records which reveal complaints of left shoulder pain after carrying boxes in October 1991. The appellant reported a burning sensation from his shoulder up to his neck. He reported tingling in his left shoulder and upper arm. Muscle strain was assessed. It is shown that in November 1996 the appellant was involved in a motor vehicle accident. The appellant was hit from behind. An assessment was given of status post motor vehicle accident with mild cervical strain. In December 1996, an assessment was given of cervical strain status post motor vehicle accident. In April 2001, the appellant reported a 10 year history of left neck pain. He reported that it started after injury while on active duty. A July 2005 MRI revealed multi-level moderate degenerative disc disease of the cervical spine. In April 2007 and April 2008, Dr. B rendered statements in support of the appellant's claim. Dr. B expressed that he had special knowledge in orthopedic and spine disease, and that he reviewed the appellant's service and post service treatment records, imaging reports, medical literature and other medical opinions. He stated that it was clear that the appellant had serious neck degenerative changes with associated weakness. He related that the appellant entered service fit for duty and that he had multiple neck visits while in service. Dr. B stated that the appellant's current imaging of degenerative changes was out of proportion for his age without antecedent injury. He opined that the appellant's antecedent injury occurred during service as his record does not provide an alternative etiology and that his imaging is consistent with his examination in that he has radical symptoms consistent with C-6/C-7 and C-7/T-1 degenerative disc changes. Dr. B testified in March 2011 that in his medical opinion the appellant indeed injured his neck in the 1991 incident in service. He related that at that time the appellant had tingling which meant he had some nerve problem at that time. He then related that the appellant had a car accident in 1996 resulting in a whiplash injury. Dr. B stated that the appellant had an initial injury where he probably hurt his neck with tingling and then he had the whiplash accident on top of that which complicated it. In an April 2011 statement, Dr. B reported that medical reports show a report of tingling in the left shoulder and upper arm in October 1991. The arm tingling he stated was most likely due to a co-morbid neck injury as he would not expect the appellant's simultaneous shoulder rotator cuff type injury to cause any significant arm tingling. He then stated that the appellant had a November 1996 accident in service whereby Dr. G described para-spinal muscle spasms and diagnosed cervical spine strain. He opined that a missed diagnosis occurred during and following service concerning the appellant's cervical spine up until the appellant's first MRI neck imaging in 2001/2005. He stated that all of the appellant's care in and out of service focused on his left shoulder as the sole source of his pain which was an error in treatment because he likely had a damaged cervical spine since his initial injury in service and following the accident in 1996. Dr. B stated that he understood that the appellant's plain x-ray images had been read as normal but it must be remembered that plain x-rays are unable to identify significant soft tissue injuries to the cervical spine. In fact, he stated that the appellant's 2001 and 2005 MRI scans both showed significant cervical spine degenerative disease. He stated that the appellant likely had advanced degenerative disc disease in his neck which is advanced for the appellant's age and that these changes in his opinion are due to the appellant's service neck injuries as his records do not contain another more likely cause. He stated that the changes are markedly out of proportion to the appellant's age without antecedent trauma. He opined that the appellant's antecedent trauma was his in service neck injuries which are causing radicular signs and symptoms. Via various statements the appellant has related that his neck is stiff and limited in motion. He reported severe pain that jolts down his spine and difficulty resting with ease. He related that such has been a problem since service and that pain increased each year since then. He has stated that he felt that his cervical spine condition was caused by the same trauma that caused his service connected left shoulder condition but he did not feel that his cervical spine condition was secondary to his left shoulder. According to the appellant, he threw a bag over his shoulder in October 1991 and that the bag landed on the base of his neck which caused a burning sensation through his neck and shoulder. Since that particular incident, he related that his life changed. The Board has considered such statements in conjunction with the evidence of record. However, the Board is also presented negative evidence. In this regard, the spine and other musculoskeletal system were reported normal at the November 1998 separation examination. Although the appellant reported swollen or painful joints at that time, he attributed such to painful left shoulder and left knee. A normal cervical spine was shown by examination in September 2005 and August 2006. The appellant was afforded a VA compensation and pension examination in June 2008. During this examination, the appellant reported he injured in left shoulder in 1992 when he threw a bag over his left shoulder. He related that his neck condition began at the same time. He reported difficulty turning his neck, spasms, and stiffness. Cervical spondylosis with chronic neck pain and strain was diagnosed. The VA examiner related that the appellant had a motor vehicle accident in November 1996 with complaints of neck pain, and that an assessment was given of mild cervical strain with normal x-ray. He also stated that there was no indication of any cervical problems listed on discharge examination. He opined that the degenerative disc disease of the cervical spine was less likely than not secondary to the motor vehicle accident of November 1996 but was more likely than not secondary to normal wear and tear, and the aging process. After weighing the positive and negative evidence, the Board concludes that service connection for degenerative disc disease of the cervical spine is warranted. To that end, the Board notes that it is clear that the appellant was treated for cervical spine problems while in service. We also note that the appellant has presented competent and credible testimony of an in-service injury and continued neck problems since then. Furthermore, Dr. B has opined that the appellant likely has advanced degenerative disc disease in his neck which is advanced for the appellant's age and that these changes in his opinion are due to the appellant's service neck injuries. We recognize that the June 2008 VA examiner opined that the appellant's degenerative disc disease of the cervical spine was less likely than not secondary to the motor vehicle accident of November 1996 but was more likely than not secondary to normal wear and tear, and the aging process. Although we find the VA examiner and Dr. B both competent, the Board has afforded greater probative value to the opinion of Dr. B. In this regard, although the VA examiner addressed the appellant's 1996 motor vehicle accident, we note that the VA examiner did not mention and/or address the appellant's 1991 neck complaints following heavy lifting. However, Dr. B has issued a very thorough opinion which takes into account all of the in service manifestations and post service manifestations. As such, we find Dr. B's opinion outweighs the findings of the VA examiner as it is more thorough, well reasoned and consistent with the historical record. In sum, the Board finds that the evidence sufficiently shows the existence of a current disability, an in-service incurrence and a relationship between the current disability and service. Accordingly, service connection for degenerative disc disease of the cervical spine is granted. ORDER Service connection for degenerative disc disease of the cervical spine is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs