Citation Nr: 1318751 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-37 062A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a bilateral ankle disability. 4. Entitlement to service connection for a gastrointestinal disability, to include irritable bowel syndrome (IBS). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1969 to May 1975, from November 2002 to February 2003, and from March 2006 to August 2007, and also served in the Colorado Army National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Denver, Colorado Department of Veterans Affairs (VA) Regional Office (RO). (The Board notes that the Veteran excluded the issue of service connection for a gastrointestinal disability from his October 2009 substantive appeal. However, as the RO continued the appeal on this issue in a September 2012 supplemental statement of the case (SSOC), and the Veteran has since pursued it, the Board finds that the issue remains on appeal. Percy v. Shinseki, 23 Vet. App. 37, 44-46 (2009).) In March 2013, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The Veteran had also initiated appeals of denials of service connection for a lumbar spine disability, for a left hip disability, for a bilateral foot disability, and for a right shoulder disability. An October 2009 rating decision granted service connection for lumbar spine degenerative disc disease with spondylosis, for chronic left hip strain, and for bilateral plantar fasciitis; and a June 2012 rating decision granted service connection for right shoulder injury to include right shoulder strain and degenerative joint disease. Consequently, those matters are not before the Board. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present, there are no additional documents pertinent to this appeal in Virtual VA. The issues of service connection for a bilateral knee disability, a bilateral ankle disability, and a gastrointestinal disability are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. FINDING OF FACT It is reasonably shown that the Veteran's cervical spine disability is etiologically related to his service. CONCLUSION OF LAW Service connection for a cervical spine disability is warranted. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim of service connection for a cervical spine disability. However, as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on this matter; any notice defect or duty to assist failure is harmless. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially 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). In order to establish service connection for a claimed disability, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that his current cervical spine disability resulted from injuries sustained flying helicopters (with hard landings) as a combat pilot in Vietnam. He asserts that his neck was also injured flying for thousands of hours as a helicopter pilot due to the position he had to sit in and the constant vertical bounce caused by the helicopter's rotor system. He relates that on taking fire in service he would jerk his neck around to identify the source so that he could engage in evasive action. The Veteran's service treatment records (STRs) do not document any complaints, findings, treatment, or diagnosis of a cervical spine disability. The Veteran's DD Form 214 shows that he served in Vietnam, that his military occupational specialty (MOS) was helicopter pilot, and that he received multiple awards that reflect combat participation (including the Vietnam Cross of Gallantry with Palm and the Air Medal with "V" Device). Therefore, the Board notes the potential applicability of 38 U.S.C.A. § 1154(b). That statute states that for any Veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2002). Postservice, a June 2008 private treatment record notes the Veteran complained of neck pain. On March 2009 VA general medical and spine examination, the Veteran reported that he initially injured his cervical spine during service in January 1973, when he fell from a helicopter during a pre-flight check. He also reported that he had over 7000 flight hours during which he wore a helmet that was heavy and caused his head to bob during extremely bumpy helicopter flights. Contemporaneous x-rays of his cervical spine revealed degenerative disc and joint disease. The examiner diagnosed the Veteran with cervical neck strain of unknown etiology. On June 2009 VA general medical examination, the Veteran reported that he sustained a 1973 fall from a helicopter in which he sprained his neck, but did not seek treatment for this injury in service. He asserted that as a consequence of this 1973 injury, he developed chronic intermittent cervicalgia. The diagnosis was cervical spine degenerative joint and degenerative disc disease with no radiculopathy. In August 2009, the Veteran submitted several treatise articles discussing the prevalence of neck pain in military helicopter pilots. At a May 2011 VA spine examination, the Veteran reported having neck pain since at least 1987 and most likely back to his Vietnam service in the 1970s. He reported that he had several thousand helicopter flights, including five hard landings (three in combat in Vietnam). X-rays of his cervical spine revealed degenerative disc and joint disease. The diagnosis was cervical spine degenerative joint disease and degenerative disc disease without radiculopathy. The examiner opined that it was as least as likely as not that such disability was caused by, or the result of, the Veteran's in-service military injury as described by history and his service thereafter; the examiner noted that the Veteran's descriptions of his neck pain and its limitations have remained consistent during his histories. In an April 2012 statement, a military physician reviewed the Veteran's medical records and opined, based on 28 years of experience performing the duties as a military flight surgeon, that the Veteran's musculoskeletal symptoms of chronic neck pain were more likely than not the direct result of his thousands of hours of rotary wing helicopter flight duties. The physician noted that it is well accepted that the vibratory stress of rotary-wing flight is especially damaging to the axial skeleton. The physician concluded that his opinion was within a reasonable degree of medical certainty and was well beyond the minimal standard of reasonable doubt. On August 2012 VA spine examination, the Veteran reported that he developed neck pain from falls and from wearing a heavy helmet during service. X-rays of his cervical spine revealed degenerative changes. The diagnosis was degenerative disc disease of the cervical spine. The examiner opined that such disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that there was no medical evidence causally relating the Veteran's cervical degenerative disc disease as a result of wearing a helmet. The examiner stated that cervical degenerative disease is normally a result of factors such as heredity or trauma. At his March 2013 hearing, the Veteran testified that he injured his neck in service when he had four hard landings as a helicopter pilot in Vietnam, and that he received awards for heroism as a result of each of those missions. He also reiterated that the weight of his helmet and night vision goggles that he wore as a pilot in service had put a lot of strain on his neck. He acknowledged that he did not seek treatment for neck pain while on active duty because he did not want to be treated negatively by his superiors or risk being grounded from flying. Upon review of the record, the Board once again notes that the Veteran served in combat, and that he contends that his current cervical spine disability resulted from injuries sustained flying helicopters (with hard landings) as a pilot in combat in Vietnam. The Board finds the Veteran's testimony and statements regarding such trauma in service to be consistent with his combat service and to be credible. See 38 U.S.C.A. § 1154(b). The competent medical evidence of record clearly documents that the Veteran has a current diagnosis of cervical spine degenerative joint disease and degenerative disc disease. A May 2011 VA examiner provided adequate rationale when opining that it was as least as likely as not that such disability was caused by or the result of the Veteran's in-service military injury as described by history and his service thereafter. The military physician in April 2012 provided adequate rationale when opining that the Veteran's musculoskeletal symptoms of chronic neck pain were more likely than not the direct result of his thousands of hours of rotary wing helicopter flight duties. While the August 2012 VA examiner opined that the Veteran's degenerative disc disease of the cervical spine was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, such opinion failed to take into account the Veteran's MOS as a helicopter pilot and his concurrent combat duties in rendering this opinion. Notably, that examiner conceded that trauma is an etiological factor for cervical degenerative disease (but appears to have discounted that the veteran sustained cervical trauma in service). The Board observes that whether or not the veteran sustained cervical trauma in service is an adjudicatory determination, not a medical question. The Board finds that the record amply supports the Veteran's accounts that he sustained cervical trauma in service. Therefore, such opinion does not merit any substantial probative weight. Accordingly, the Board concludes that the evidence supports the Veteran's claim, and that service connection for a cervical spine disability. to include degenerative disc and joint disease, is warranted. ORDER Service connection for a cervical spine disability, to include disc and joint disease, is granted. REMAND In addition to the Veteran's confirmed periods of active duty from October 1969 to May 1975, from November 2002 to February 2003, and from March 2006 to August 2007, the record reflects that he also had additional Reserve service in the Army National Guard of Colorado. The RO must arrange for exhaustive development to obtain documentation of the specific dates on which the Veteran was placed on orders for active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). Bilateral Knee Disability The Veteran contends that his current bilateral knee disability resulted from injuries sustained flying helicopters (with hard landings) as a pilot in combat in Vietnam and as a result of the rigors of his physical training requirements. The Veteran's Reserve/National Guard STRs note the following: On a July 1994 report of medical history, he noted that his left knee hurt after running more than five miles. In March 2002, he reported having knee pain when running. On a May 2002 report of medical history, he noted that training for a physical training test had caused his right knee to swell, and hurt when descending stairs and often did not allow him to squat. In May 2002, an orthopedist assessed degenerative arthritis of the knees. In June 2002, he was given a Physical Profile for arthritis in both knees. On June 2004 examination, it was noted that he had right knee crepitus, possibly secondary to internal derangement. On a June 2004 report of medical history, he noted that his knees swelled after running, that he had mild pain, and that his right knee popped when descending stairs. In July 2004, patellofemoral arthritis was diagnosed by a private physician. On a June 2005 report of medical history, he endorsed a history of knee trouble. The Veteran's active duty STRs show: On June 2006 examination, it was noted that he had left knee pain that increased with running. In a June 2006 report of medical history, he endorsed a history of left knee trouble. In December 2006, he reported having sore knees. In a June 2007 report of medical history, he noted that he had painful knees and that he wore knee braces when exercising. A July 2007 report of medical assessment notes he reported that his knees swelled so much after racquetball that he had to quit playing, and that he had put up with pain in his knees for years because he loved to fly and did not want to get grounded; a health care provider noted contemporaneously that the Veteran had bilateral knee pain from degenerative joint disease from years of running, made worse with running, and swollen at times. Following service, at a March 2009 VA general medical and joints examination, the Veteran reported that he initially injured his knees during service in 1972 when they began to ache a lot during physical training. He stated that over the years the pain had progressed to the point that he could no longer run. X-rays of both knees revealed degenerative changes. The diagnosis was bilateral knee strain. On June 2009 VA general medical examination, the Veteran reported the onset of bilateral knee pain in 1998 (while in the Army National Guard) brought on by running or physical fitness training purposes. The diagnosis was bilateral knee degenerative joint disease. April 2011 VA x-rays of the Veteran's knees revealed degenerative changes. In an April 2012 statement, an aeromedical physician assistant noted that, in the course of performing annual flight physicals on the Veteran during the final years of his career with the Army National Guard of Colorado, he displayed difficulty with running due to chronic knee pain for which he wore a brace for support and iced the knees after physical training. On August 2012 VA knees examination, the Veteran reported that he had degenerative joint disease diagnosed in 2004 and had knee pain while running. X-rays of both knees were negative for acute bony abnormality, but revealed mild chronic patellofemoral osteoarthritis in the right knee. The diagnosis was degenerative joint disease of the right knee. The examiner opined that such disability clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an injury, event, or illness in service. The examiner noted that the x-ray findings had revealed degenerative joint disease in the Veteran's right knee that was mild, and therefore such had not progressed beyond its natural progression. No opinions were provided for the Veteran's left knee. At his March 2013 hearing, the Veteran testified that he injured his knees in service when he had four hard landings as a helicopter pilot in Vietnam, and that he received awards for heroism as a result of each of those missions. He also testified that his knees were hurt by the physical fitness requirements that he had to maintain. In light of the above, an examination to ascertain the nature and likely etiology of the Veteran's current bilateral knee disability, with specific consideration of his combat service as well as the relevant findings documented in his STRs, is needed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Bilateral Ankle Disability The Veteran contends that his current bilateral ankle disability resulted from injuries sustained while flying helicopters (with hard landings) as a pilot in combat in Vietnam and as a result of the rigors of his physical training requirements. The Veteran's active duty STRs note: In June 1973, he sought treatment after twisting his right ankle while bicycle riding the day before; X-rays of his right ankle were normal; the assessment was mild sprain of the interosseous membrane. Following his discharge from service, on March 2009 VA general medical and joints examination, the Veteran reported that he initially injured his ankles in service in December 1968 when he twisted the ankles during physical training on a forced march. He noted that he also sustained a right ankle injury running in July 1971. X-rays of both ankles revealed degenerative changes. The diagnosis was bilateral ankle strain. On June 2009 VA general medical examination, the Veteran reported a 1968 basic training or AIT episode of bilateral ankle sprains brought on by a forced march. He asserted that as a consequence of this 1968 injury, he developed chronic intermittent bilateral ankle pain and rollover instability of both ankles. The diagnosis was bilateral ankle degenerative joint disease. April 2011 VA x-rays of both of the Veteran's ankles revealed degenerative changes. On August 2012 VA ankles examination, the Veteran reported that he sprained his right ankle in basic training. X-rays of his right ankle were negative for acute osseous abnormality. The diagnosis was right ankle sprain. The examiner opined that such disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the medical records do not reflect a condition occurring in 1973 that would have caused degenerative joint disease of the ankles; that the medical examinations of 1975 and 1991 reflected that he was in excellent health; and that there were no findings of degenerative joint disease at the current examination. No findings or opinions were provided for the Veteran's left ankle. At the March 2013 hearing, the Veteran testified that he injured his ankles in service when he twisted them during a forced march in December 1968, and again in July 1971 when he twisted his ankle running to maintain physical conditioning. In light of the above, an examination to ascertain the nature and likely etiology of the Veteran's current bilateral ankle disability, with specific consideration of his combat service as well as the relevant findings documented in his STRs is needed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Gastrointestinal Disability The Veteran's active duty STRs note: In April 1972, he complained of diarrhea, stomach cramps, nausea, and vomiting, and an impression of gastroenteritis was rendered. In January 1979, he underwent surgery for incision and drainage of a perirectal abscess. The Veteran's Reserve/National Guard STRs note: In May 2001, he reported a history of colon cancer on his mother's side of the family, and requested colonoscopy to rule out colon pathology. In a May 2002 report of medical history, he noted that in the last two weeks he had occasionally noticed blood on his toilet paper. Following his discharge from service, a June 2008 private treatment record notes the Veteran complained of diarrhea and stated that he had had IBS for a very long time. He reported that when he used to fly in Vietnam, he had had several episodes of diarrhea where they had to cut off his flight suit. The private examiner assessed him with functional diarrhea and IBS. On August 2008 VA Agent Orange examination, the Veteran reported having diarrhea and that he had IBS diagnosed as early as in 1972. The diagnosis was IBS by history. On March 2009 VA general medical and digestive conditions examination, the Veteran reported that beginning in April 1972, during his deployment to Vietnam, he suffered severe diarrhea. He stated that he had had bowel issues ever since then, including an anal fissure, IBS, and fecal incontinence. The diagnosis was IBS with fecal incontinence. On a March 2009 VA dental health questionnaire, the Veteran indicated that he had a history of persistent diarrhea. On June 2009 VA general medical examination, the Veteran reported having a brief episode of diarrhea while serving in Vietnam in 1972, and the onset of chronic watery bowel movements in 2004 (while in the Army National Guard). The diagnosis was chronic recurrent watery bowel movements of unknown etiology. A June 2009 Vet Center record notes the Veteran reported that he received an assessment of colon cancer (which he thought was a misdiagnosis), and that a colonoscopy was scheduled. At the March 2013 hearing, the Veteran testified that he had had diarrhea while in Vietnam in April 1972, and that he currently has a diagnosis of IBS. In light of the above, an examination to ascertain the nature and likely etiology of the Veteran's current gastrointestinal disability, with specific consideration of his combat service as well as the relevant findings documented in his STRs, is needed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following: 1. The RO must arrange for exhaustive development to obtain documentation of the specific dates on which the Veteran was placed on orders for active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) during his Reserve service in the Army National Guard of Colorado. Any negative search result must be noted in the record and communicated to the Veteran. 2. After the development sought in Instruction #1 above is completed, the RO should arrange for an orthopedic examination of the Veteran to ascertain the nature and likely etiology of his bilateral knee disability and his bilateral ankle disability. The Veteran's entire record (to include the claims file with this remand and the records in Virtual VA) must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following: Regarding the knees: (a) Please identify (by medical diagnosis) each disability entity of either knee found. If no knee disability is diagnosed, please reconcile that conclusion with the medical evidence of record. (b) As to any/each knee disability entity diagnosed, please identify the most likely etiology. Specifically, is it at least as likely as not (a 50% or better probability) that such was incurred or aggravated during the Veteran's active service or any confirmed period of ACDUTRA/INACDUTRA. The examiner must specifically consider and address the Veteran's combat service as well as the relevant findings documented in his STRs. The examiner must explain the rationale for all opinions, citing to supporting clinical data, as appropriate. Regarding the ankles: (a) Please identify (by medical diagnosis) each disability entity of either ankle found. If no ankle disability is diagnosed, please reconcile that conclusion with the medical evidence of record. (b) As to any/each ankle disability entity diagnosed, please identify the most likely etiology. Specifically, is it at least as likely as not (a 50% or better probability) that such was incurred or aggravated during the Veteran's active service or any confirmed period of ACDUTRA/INACDUTRA. The examiner must specifically consider and address the Veteran's combat service as well as the relevant findings documented in his STRs. The examiner must explain the rationale for all opinions, citing to supporting clinical data, as appropriate. 3. After the development sought in Instruction #1 above is completed, the RO should arrange for a gastrointestinal examination of the Veteran to ascertain the nature and likely etiology of his gastrointestinal disability. The Veteran's entire record (to include the claims file with this remand and the records in Virtual VA) must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following: (a) Please identify (by medical diagnosis) each gastrointestinal disability entity found. If no gastrointestinal disability is diagnosed, please reconcile that conclusion with the medical evidence of record. (b) As to any/each gastrointestinal disability entity diagnosed, please identify the most likely etiology. Specifically, is it at least as likely as not (a 50% or better probability) that such was incurred or aggravated during the Veteran's active service or any confirmed period of ACDUTRA/INACDUTRA. The examiner must specifically consider and address the Veteran's combat service as well as the relevant findings documented in his STRs. The examiner must explain the rationale for all opinions, citing to supporting clinical data, as appropriate. 4. The RO should ensure that all of the development sought is completed, and then review the record and readjudicate the remaining claims. If any remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs