Citation Nr: 1312352 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-47 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from June 1960 to April 1983. This matter comes before the Board of Veterans' Appeals (the Board) on appeal of a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which, in part, denied the Veteran's service-connection claim for a cervical spine disorder. The Veteran testified at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge (VLJ) at the Lincoln RO in August 2012. The Veteran was provided an opportunity to set forth his contentions at the hearing. The record reflects that at this hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). A copy of the hearing transcript has been associated with the claims folder. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The evidence of record is in equipoise as to whether the Veteran's current cervical spine disorder is related to his active duty military service. CONCLUSION OF LAW Resolving the benefit of the doubt in the Veteran's favor, a cervical spine disorder was incurred in active duty military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 1. VA's Duty to Notify and Assist The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. A VCAA notice letter was sent to the Veteran regarding his cervical spine claim in March 2010. The Board need not discuss in detail the sufficiency of this VCAA notice letter in light of the fact that the Board is granting the Veteran's claims. Any potential error on the part of VA in complying with the provisions of the VCAA, or with any of the Board's prior remand instructions, has essentially been rendered moot by the Board's full grant of the benefits sought on appeal. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103. Accordingly, the Board will proceed to a decision. 2. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain chronic diseases, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, 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). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran contends that he has current cervical spine disorder that was caused by, or is otherwise related to his participation in martial arts training while serving on active duty in 1960's. In particular, he suffered severe injuries to his spine during judo competition tournaments in 1962 and 1963. He has testified that he has had upper back and neck pain continuously since service that has progressively worsened over time to where he has required four operations on his cervical spine. See the August 2012 hearing transcript, pages 3, 6, and 9. As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. See Shedden v. Principi, 381 F.3d at 1167. With respect to element (1), the medical evidence of record demonstrates that the Veteran has a history of degenerative disease of the cervical spine with radiculopathy in the upper extremities, and that the Veteran has undergone four operations on his cervical spine that started with a discectomy in 1993. See private treatment records from Bishop Clarkson Hospital dated from 1993 to 2008; Neurological Surgery, Incorporated dated in 2002-2005; and the report of a September 2010 VA spine examination. Based on the above, it is clear that element (1), current disability, is satisfied. With respect to element (2), in-service disease or injury, the Veteran's service treatment records do not reflect that the Veteran complained of, sought treatment for, or was diagnosed with any neck or cervical spine problem in service. However, the record is replete of complaints of low back problems, muscle pains, and joint pains. The service treatment records show that he sought treatment for serious orthopedic and internal injuries that he sustained from the judo competitions in 1962 and 1963. He underwent an extensive month long medical evaluation in 1966 in Wiesbaden Hospital in German. Although there was objective evidence of pain and muscle spasms in the back, and in particular, in his low back, further orthopedic, neurologic, and neuropsychological evaluations were negative. The Veteran also underwent a muscle biopsy of the left shoulder related to his complaints of muscle spasms in his back in April 1968. None of these service treatment records show that the Veteran made specific references to neck pain or cervical spine problems. Regardless, the Veteran contends that he suffered injuries to cervical spine at the same time he injured his lower back in 1962 and 1963. The Board finds no reason to disbelieve that the cervical spine injuries occurred during the Veteran's service. Indeed, the Veteran is competent to describe his in-service experiences and observations of pain symptomatology, and his service treatment records confirm that he suffered severe injuries to his back in 1962 and 1963 from his participation in judo competitions, albeit none of the records document neck or cervical complaints. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As noted by the September 2010 VA examiner, given "the violent nature of these types of activities," the Veteran's complaints of neck discomforts could be "secondary to the judo incidences he mentions." In addition, the undersigned found the Veteran's testimony at the August 2012 hearing to be credible. Accordingly, element (2), in-service injury, is satisfied as well. With respect to crucial element (3), nexus or relationship, upon review of the Veteran's claims folder and after examination of the Veteran's cervical spine, the September 2010 VA examiner first stated that there were no records to confirm the Veteran's contention that his current cervical problems are related to injuries he sustained during the 1962 and 1963 judo competitions. The examiner further stated that if the Veteran was able to obtain records of "documentation concerning neck complaints in the 1980's, then it would be at least as likely as not that his current neck discomfort are secondary to the judo incidences he mentions, because of the violent nature of these types of activities." However, the Veteran was unable to obtain his earlier post-service treatment records from his primary care physician, Dr. T. J. H., because they were destroyed. See August 2012 Board hearing transcript, page 9. In an addendum opinion dated later in September 2010, the September 2010 VA examiner noted that the Veteran failed to provide documentation of his 1980's treatment, and the available post-service treatment records indicated an onset of his current neck problem in 1992. The VA examiner concluded that he now felt that "it is less likely that any current neck issues and subsequent issues are due to service." See the September 2010 VA examiner's report, pages 6 and 7. Subsequently, the Veteran has submitted a September 2012 private medical statement from Dr. H., his primary care physician who has been treating his since 1983, when he separated from active duty. Dr. H. stated that he has been treating the Veteran for cervical spine condition. Based on his review of the medical records, as well as his clinical notes and examination, Dr. H. opined that it was as likely as not that the Veteran's current cervical problems stem from his military service when he received injuries from his martial arts training. See the September 2010 letter from Dr. T. J. H. Dr. H. has provided a positive medical nexus opinion that links the Veteran's current cervical spine disorder to those marital arts-related injuries he sustained in service. Also, the VA examiner qualified his medical conclusion based on the condition that medical records would confirm the Veteran's continuity of neck problems since the 1980's. Although the Veteran's treatment records from the 1980's are unavailable, the Veteran's treating physician since 1983, Dr. H., has provided a positive medical statement based on his history of treating the Veteran since his separation in 1983. Dr. H.'s medical statement indicates that the Veteran received treatment for his cervical spine problems since the 1980's, which supports the VA examiner's original conditional medical conclusion. In addition, the VA examiner's addendum opinion is no longer adequate because it is not based on a review of all the evidence of record. In addition, the Board has considered that the Veteran has consistently asserted that he experienced cervical pain in service to the present day. Neither Dr. H. nor the September 2010 VA examiner has identified any medical evidence that would call the Veteran's observations of continuous pain symptomatology into question. The Veteran has a current diagnosis of arthritis of the cervical spine, which is considered a chronic disease. 38 C.F.R. § 3.309(a). Although there is no evidence of arthritis within the first year after the Veteran's separation from service, under 38 C.F.R. § 3.303(b) an alternative method of establishing the third element of service connection in the absence of an adequate medical nexus opinion is through a demonstration of continuity of symptomatology of a chronic disease. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered when adjudicating service-connection claims, and that competent lay evidence can be sufficient in and of itself in certain circumstances to establish the presence of a disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Notably, the Federal Circuit also held in Buchanan that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan, 451 F.3d at 1337. The Veteran is certainly competent to report experiencing pain in his cervical spine after he sustained injuries from participating in judo competitions while serving on active duty service. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, after reviewing all the lay and medical evidence of record, the Board finds no reason to call the Veteran's credibility into question with respect to his report of in-service onset of cervical pain symptomatology, and his report of ongoing pain from that time to the present day. As discussed above, the service treatment records show that the circumstances of the Veteran's participation in martial arts resulted in serious injury to his back and he consistently complained of muscle pain and joint pain throughout the remainder of his service. The Board finds that the evidence of record for and against the Veteran's claim is at the very least in relative equipoise. When the evidence for and against the claim is in equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Accordingly, the benefit-of-the-doubt rule is applicable in this case, and a relationship between the Veteran's current cervical spine disorder with his active military service is established. Element (3) is therefore satisfied, and the benefit sought on appeal is allowed. ORDER Service connection for a cervical spine disorder is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs