Citation Nr: 1302182 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 06-36 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected left shoulder disability. 2. Entitlement to service connection for a thoracic spine disorder, to include as secondary to service-connected left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from January 1983 to December 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In October 2007, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In January 2010, the Board reopened and remanded the Veteran's claims. In April 2011, the Board remanded the claims again for further development. In a September 2012 rating decision, the Appeals Management Center granted service connection for a left shoulder disability. In a December 2012 appellant's post-remand brief, the representative raised a new theory of entitlement for the two disorders on appeal - as secondary to the now service-connected left shoulder disability. In light of the above, the issues are as stated on the title page. FINDINGS OF FACT 1. The preponderance of competent medical evidence shows that the Veteran's cervical spine disorder is related to active service. 2. The preponderance of competent medical evidence shows that the Veteran's thoracic spine disorder is related to active service. CONCLUSIONS OF LAW 1. A cervical spine disorder was incurred in service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2001 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. A thoracic spine disorder was incurred in service. 38 U.S.C.A. §§ 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the fully favorable decision below, a detailed explanation of how VA complied with the VCAA is unnecessary. Pertinent law and regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). In order to establish service connection for a claimed disorder, there must be (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). 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). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. In order to show a 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." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a veteran's claim. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(b) applies when evidence, regardless of its date, establishes that a veteran had a chronic condition in service and still has that condition. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. Analysis Hickson element (1), current disability, has been met. Although a June 2010 VA examiner diagnosed no current disabilities other than developmental scoliosis of the thoracic spine, in November 2007 a private doctor diagnosed cervical and thoracic myofascial strain. In a June 2012 statement, another private doctor diagnosed cervical degenerative disc disease with radiculopathy and myofascial pain syndrome. The VA doctors rendered medical opinions in April 2011 and September 2012 in essence acknowledged that the Veteran had current cervical and thoracic spine disorders. While the Board is not free to ignore the opinion of a treating physician, neither is it required to accord it additional weight. Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). The United States Court of Appeals for the Federal Circuit (the Federal Circuit) has declined to adopt a "treating physician rule," which would give preference, i.e., additional evidentiary weight, to this type of evidence. White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The United States Court of Appeals for Veterans Claims (the Court) has also held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). A medical opinion may not, however, be discounted solely because a medical professional did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Rather, the question is whether the medical professional was informed of all relevant facts in rendering a medical opinion. Id. The private doctor who diagnosed cervical degenerative disc disease and myofascial pan syndrome made the diagnosis of cervical degenerative disc disease based on magnetic resonating imaging (MRI) study of the cervical spine. Therefore, the Board gives his diagnoses great weight. The Board reiterates that thoracic myofascial strain had been previously diagnosed. The preponderance of competent medical evidence shows that the Veteran has cervical and thoracic spine disorders. With respect to Hickson element (2), the Veteran's service treatment records show that in September 1983 she had had a history of a recent complaint of left-sided neck pain and a history of treatment for a stiff left neck. While the appellant denied a history of recurrent back pain on her separation examination, it was noted that she had a mild left shoulder muscle spasm. A little over two years after active duty, the claimant reported that she had an injury in 1983 and complained of pain in the left shoulder, pain across the top portion of the back, and pain in the left side of the neck. In a March 1992 statement, a fellow veteran reported that the appellant injured her back in service due to road marches and training. The Veteran is competent to claim that she injured her upper back. Despite her denial of a history of recurrent back pain on the separation examination, the Board finds the appellant credible in her claim of injuring her upper back because she made contention relatively soon after service, because she has provided a buddy statement in support of her contention, and because she had documented left shoulder and neck symptomatology (areas close to the upper back area in question) in service. Therefore, Hickson element (2) is established. Turning to Hickson element (3), medical nexus, there is conflicting medical nexus evidence. The June 2010 VA examiner opined that the cervical and thoracic spine disorders were not related to service apparently in part on the basis that the Veteran did not have any current cervical and thoracic spine disorders other than developmental thoracic spine scoliosis and on the basis that there was no record of cervical and thoracic spine injuries or treatment in service. As noted, the preponderance of competent medical evidence shows that she has current cervical and thoracic spine disorders. Moreover, as noted in the April 2011 Board remand, there is evidence in the service treatment records of treatment for neck pain. The VA doctor who rendered a medical opinion in April 2011 that the cervical and thoracic spine disorders were not related to service relied on the June 2010 VA examination report showing no current disabilities. The Board again notes that the preponderance of competent medical evidence shows that she has current cervical and thoracic spine disorders. The VA doctor who rendered a medical opinion in September 2012 that the cervical and thoracic spine disorders were not related to service noted that there was no documentation of complaints or evaluations related to the neck. The Board again notes that there is evidence of neck pain treatment in the service treatment records. In short, all of these opinions are based on factual predicates not supported by the preponderance of competent medical evidence. In the June 2012 statement, the Veteran's treating physician opined that the cervical degenerative disc disease with radiculopathy and myofascial pain syndrome (for which there is a previous diagnosis of cervical and thoracic myofascial strain) are more likely than not related to the injuries from military service. It does not appear that the private doctor reviewed the service treatment records but instead relied on the appellant's reporting of continuity of symptomatology and of the in-service injury itself. For the same reasons as stated above, the Board finds the claimant competent and credible to report her continuity of symptomatology and the in-service injury to her private doctor. Therefore, this medical opinion is supported by a competent and credible factual predicate and the Board places great weight on this opinion. Accordingly, Hickson element (3) is established. In summary, the Board is of the opinion that the Veteran has met all requirements needed to establish service connection for cervical and thoracic spine disorders on a direct basis. The benefits sought on appeal are accordingly allowed. Finally, since the Board is granting the claims on a direct basis, the Board does not have address whether the cervical and thoracic spine disorders are secondary to the now-service-connected left shoulder disability. ORDER Service connection for a cervical spine disorder is granted. Service connection for a thoracic spine disorder is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs