Citation Nr: 1319389 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 08-05 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a cervical spine disability, as secondary to service-connected right and left knee disabilities. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active military service from August 1982 to June 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2005, May 2006, and April 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia. The appeal was previously before the Board in January 2011, at which time it was remanded for further development. The Veteran testified at a hearing before RO personnel in November 2007; a transcript of that proceeding has been associated with the claims file. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the evidence of record indicates that his cervical spine disability was caused by his service-connected bilateral knee disabilities. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability, as secondary to service-connected bilateral knee disabilities, have been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claim for service connection for a cervical spine disability. Legal Criteria Service connection-general criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996). In addition, certain chronic diseases, such as arthritis, may be presumed to have been incurred during 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, 1137; 38 C.F.R. §§ 3.307, 3.309; see also 67 Fed. Reg. 67792 -67793 (Nov. 7, 2002). In this case, the presumption does not apply because there is no medical evidence that the Veteran manifested arthritis of the cervical spine to a compensable degree within one year of service discharge in 1987. See 38 C.F.R. §§ 3.307, 3.309. The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as arthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. Secondary service connection-criteria Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310, Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background and Analysis The Veteran seeks service connection for a cervical disability as secondary to his service-connected bilateral knee disability. During his November 2007 hearing, he testified that his left knee gave out and collapsed while demonstrating a wrestling maneuver with a student in 1988. As a result, both the Veteran and the student fell to the ground, and the student rolled over onto the Veteran's neck thereby injuring it. He was treated in the emergency room immediately thereafter. Service treatment records indicate no complaints or treatment related to the neck or cervical spine. His March 1987 discharge examination indicated the Veteran had no spinal abnormalities. However, the Veteran was noted as having some significant left knee symptoms, including crepitus and effusion, mild degenerative joint disease, and patellofemoral syndrome of the left knee, as well as subjective complaints of the knee giving way with quick motion (see also April 1987 Medical Evaluation Board Proceedings Report and May 1987 Medical Board Addendum). Following service, a November 1988 VA treatment record shows ongoing complaints of knee pain, stiffness, lack of mobility, and problems bending and standing. In December 1988, the Veteran presented to the emergency room with complaints of neck pain following a wrestling injury. The Veteran reported that he had been showing a student wrestling moves when he rolled onto his neck. A contemporaneous x-ray of the cervical spine was negative. A January 1989 VA treatment report reflects ongoing complaints of neck pain since injuring it in December 1988 while wrestling. The Veteran noted that he had been using a neck brace along with Percodan and Valium for pain relief; the pertinent diagnosis was moderately severe cervical muscle spasms. A November 1998 VA orthopedic record shows a history of neck injury while wrestling in 1988, but no objective findings of alignment abnormalities per the contemporaneous cervical spine x-rays (in 1988). The Veteran reported that he continued to experience pain and stiffness of the neck thereafter. The orthopedic report also reflected that a previous MRI (conducted approximately 4 years prior) had shown disk herniation at C4-5 and C5-6; afterwards, he underwent an anterior cervical diskectomy and fusion. An MRI was recommended. A December 1998 VA MRI report showed a broad-based protrusion at C6-7; the Veteran was scheduled for and underwent an anterior cervical diskectomy and fusion in August 1999. An October 1999 x-ray of the cervical spine confirmed degenerative and post-operative changes. VA and private treatment records dated from 2000 to 2007 reflect continued treatment for severe cervical spine and neck pain. In October 2005, the Veteran's long-time treating physician, Dr. Burgess, submitted a letter indicating that he had reviewed medical records from 1988 to the present, and he opined that his current cervical spine problems were "as likely as not" due to the wrestling injuries sustained in 1988. In a June 2006 statement from B.T., an eyewitness to the Veteran's December 1988 wrestling injury, B.T. stated that he saw the Veteran land in an awkward position and that his unstable knee "could have directly contributed to the injury he suffered to his neck" that day. He further stated "if one's knees give way unexpectedly while attempting to execute a specific wrestling move, then disruption of balance and coordination could result in an awkward landing such as the one [the Veteran] experienced leading to his neck injury." The Veteran underwent a VA joints examination in February 2007; the Veteran reported that he injured his neck while wrestling after twisting his knee. The pertinent diagnosis was status-post fusion of C-6, C-7 with degenerative disc disease at C4-C5, and C5-C6. The examiner concluded that the Veteran's knee problems "had nothing to do" with his neck problems because "knee problems would not cause degenerative disc or degenerative joint changes in the lower back, and the Veteran himself stated that he hurt his neck while wrestling. In May 2007, Dr. Burgess, the Veteran's long-time treating physician, submitted a letter stating that he had reviewed the Veteran's medical history, the Veteran's statements regarding his injury, and the eyewitness account of the wrestling injury in 1988; Dr. Burgess opined that the neck injury (followed by fusion surgery in 1999/2000) in 1988 was "caused by his injured knee(s), which would make the neck injury a result of his degenerated knee condition." The Veteran underwent a VA examination in June 2011, at which time he again reported that his knees gave out on him while he was demonstrating a wrestling move and the wrestler fell on his neck. The VA examiner opined that the right and left knee disorders did not cause or chronically aggravate the cervical spine. The examiner reiterated the extensive knee and cervical spine history outlined above; noted that the Veteran did not mention involvement of the knee in his December 1988 report of the wrestling injury; and referred to the lack of evidence of knee instability from 1987 to 1996. As an initial matter, direct service connection in this case is not warranted because there is no medical opinion found in the claims file that supports a relationship between the Veteran's currently diagnosed spinal disorder and his period of active service. Hickson, 12 Vet. App. at 253. The Veteran does not contend otherwise. Presumptive service connection also is not warranted, as evidence of degenerative disc disease of the cervical spine was not apparent within one year of the Veteran's discharge from active duty. See 38 C.F.R. §§ 3.307, 3.309. Based on the evidence of record, however, the Board finds that secondary service connection for a cervical spine disorder, diagnosed as status-post fusion of C-6, C-7 with degenerative disc disease at C4-C5 and C5-C6, is appropriate in this case. After a careful review of the evidence of record noted above, the Board finds that the evidence is, at the very least, in relative equipoise as to whether the Veteran currently has a cervical spine disorder related to his service-connected bilateral knee disabilities. As a point of relative equipoise has been reached with respect to the claimed disorder, the Board must resolve all doubt in the Veteran's favor and grant the claim for secondary service connection. In this case, the Veteran is currently diagnosed with degenerative disc disease of the cervical spine; service-connection is in effect for chondromalacia patella and degenerative changes of the left knee, as well as degenerative changes of the right knee; and the Veteran has consistently reported that his neck was initially injured in December 1988 when his service-connected knee(s) gave way during a wrestling maneuver. Although the Veteran is not competent to provide an opinion as to the etiology of his claimed disorder, he is competent to report his current symptomatology and when the onset of his symptoms began, to include the fact that his knee(s) gave out and ultimately resulted in someone landing on his neck and injuring it. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has no reason to doubt the credibility of such statements since they have been consistently reported throughout record and are further corroborated by the December 1988 ER records showing treatment for a wrestling-related neck injury, and B.T.'s eyewitness account of the incident. Again, while B.T. may not be competent to provide an etiology opinion, he is competent to provide an eyewitness account of what he saw at the time of the injury and the Veteran's observable symptoms thereafter. Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). The Board has no reason to doubt the credibility of his statements either. With respect to medical nexus, the record does contain contradictory medical opinions as to whether the Veteran's current cervical spine disorder is related to his service-connected knee disability. As noted above, the claims file contains VA opinions dated in February 2007 and June 2011 which found that the Veteran's cervical spine disability was not caused or aggravated by the service-connected knee conditions. The Board notes that it assigns very little, if any, probative value to the February 2007 opinion as it appears that the examiner only considered whether a general knee condition could directly result in degenerative disc disease of the cervical spine. That is, he did not consider whether the Veteran's current cervical spine disorder was caused by his reported fall and subsequent injury to the neck due to instability of the service-connected knees. In addition, with respect to the June 2011 VA opinion, the examiner based his opinion largely on the lack of evidence showing knee instability prior to the December 1988 wrestling incident; however, the Veteran's service treatment records, dated just one year prior in 1987, clearly show subjective complaints of instability and giving way. Moreover, unlike Dr. Burgess, the June 2011 VA examiner failed to consider either B.T.'s eyewitness account of the injury, or the Veteran's lay statements concerning ongoing knee instability, as well as his competent reports of his knee giving way during the wrestling maneuver. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). For these reasons, the probative value of the June 2011 VA opinion is slightly diminished. In contrast, Dr. Burgess found that the Veteran's neck injury in 1988 (and subsequent surgical fusion) was due to his degenerated knee condition. This opinion is supportive of the Veteran's claim for a cervical spine disability as secondary to the service-connected right and left knee disabilities. Recognition is given to the fact that the opinion from Dr. Burgess did not provide an extensive rationale. There are other means by which a physician can become aware of critical medical facts, notably by treating the claimant for an extended period of time, such as in the case of Dr. Burgess' long-term treatment of the Veteran. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While not clearly articulated, it stands to reason that the long-history of treating the Veteran gave Dr. Burgess intimate knowledge of the Veteran's body mechanics and his neck and knee disabilities, and by that basis alone his opinion is found to be probative. Moreover, Dr. Burgess stated that he had reviewed both relevant medical evidence and lay/eyewitness statements in rendering his opinion. For these reasons, the Board finds his opinion to be probative as to the issue of nexus. In sum, the Board finds that the conflicting opinions from the June 2011 VA medical examiner and the private treating physician (Dr. Burgess) have placed the record in equipoise as to whether the Veteran's cervical spine disorder is related, at least in part, to his service-connected knee disabilities. Accordingly, the Board must resolve this issue in favor of the Veteran. After carefully reviewing all the evidence on file, the Board finds no adequate basis to reject the competent medical evidence of record that is favorable to the Veteran, based on a rational lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Dr. Burgess, who is the Veteran's longtime treating physician and who is familiar with his medical history, found that his knee disabilities caused the neck injury and current cervical spine problems. In addition, the medical records clearly document a wrestling injury to the neck in 1988, with knee involvement corroborated by an eye witness, as well as the Veteran's own competent and credible accounts of knee instability at that time. While the evidence in this case is not unequivocal, it has nonetheless placed the record in relative equipoise. Accordingly, the claim for secondary service connection is granted. Further inquiry could be undertaken with a view towards development of the Veteran's claim so as to obtain an additional medical opinion as the competing opinions of records are somewhat conclusory in nature. However, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206 -07 (1994). As such, the Board will exercise its discretion to find that the evidence is in relative equipoise and conclude that entitlement to secondary service connection for a cervical spine disability is warranted. Id. ORDER Entitlement to service connection for a cervical spine disability, as secondary to service-connected knee disabilities, is granted. ____________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs