Citation Nr: 1320447 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 07-21 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from January 1983 to January 1986 and from July 1987 to October 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2005 of a Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, that determined that new and material evidence had not been received to reopen a claim for entitlement to service connection for a back disability (listed as lumbosacral strain). The case was later transferred to the Fort Harrison, Montana, Regional Office (RO). In March 2011, the Board reopened and remanded the issue of entitlement to service connection for a back disability, for further development. In October 2011, the Board determined that the issue of entitlement to service connection for a back disability should be expanded to include the issue of entitlement to service connection for a cervical spine disability as the evidence of record demonstrated that the Veteran had both neck (cervical spine) and back complaints in service, as well as recent neck and back complaints. The Board remanded the issues of entitlement to service connection for a back disability and for a cervical spine disability, for further development. A July 2012 RO decision granted service connection for lumbosacral strain and assigned a 0 percent rating for the period from December 14, 2004 to July 26, 2006, and a 10 percent rating for the period since July 27, 2006. The issue of entitlement to service connection for a back disability is no longer before the Board. The issue has been recharacterized to comport with the evidence of record. FINDING OF FACT The Veteran's cervical spine disability began during service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal as to the issue of entitlement to service connection for a cervical spine disability. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. 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 generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for a "chronic disease," may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The Veteran essentially indicates that he was treated for cervical spine problems during service and that he has had cervical spine problems since service. He reports that he suffered a cervical spine injury in a motor vehicle accident in 1985, and that he was placed in a cervical collar and treated for neck pain. He states that he self-medicated for neck pain following service. The Veteran served on active duty from January 1983 to January 1986 and from July 1987 to October 1989. The Veteran's service treatment records for his first period of service from January 1983 to January 1986 show treatment for neck or cervical spine problems on several occasions. A March 1983 emergency care and treatment report noted that the Veteran was seen for trauma to the face and hands. It was noted that he was brought to the emergency room by a parent after a dog struck his motorcycle and caused him to fall at thirty-five miles an hour. The examiner reported that the Veteran was alert and oriented, and that his pupils were equal and reactive to light. The examiner stated that the Veteran denied neck discomfort, but that he had abrasions to the face, and to the left knee and elbow. The assessment was abrasions and soft tissue swelling. A June 1985 treatment entry indicated that the Veteran complained of back pain in the thoracic area for one day. The Veteran stated that he was in an automobile accident seven days earlier with no apparent injury. He reported that he made a sudden movement and had pain radiating in the thoracic section of his back. The assessment was strain to the back/thoracic section. A subsequent June 1985 entry noted that the Veteran was seen for follow-up of his muscle spasms. He stated that he felt a lot better and that he had no pain. The assessment was "resolving." A September 1985 entry noted that the Veteran complained of muscle spasms to the left upper back and the base of the neck that began fifteen minutes earlier. He reported that there was no history of trauma, but a history of similar symptoms before. The assessment was muscle spasms of an unknown etiology. An October 1985 entry related that the Veteran was seen for follow-up for muscle spasms to the left upper back and the base of the neck. It was noted that the Veteran had a history of a minor hyperextension injury to the neck four months earlier. The Veteran reported that the pain went down the left lateral neck to the scapula. The assessment was cervical muscle strain. The examiner reported that the Veteran would be given a cervical collar. Another October 1985 treatment entry, on the next day, indicated that the Veteran was seen for follow-up for cervical muscle strain. The Veteran reported that he had decreased soreness and stiffness, and that the cervical collar was helping his symptoms. The impression was resolving cervical muscle strain. On a medical history form at the time of the December 1985 separation examination, the Veteran reported that he had recurrent back pain. The reviewing examiner indicated that the Veteran had a five-month history of waxing and waning mild mid upper back tightness and neck tightness. It was noted that the Veteran felt like a knot would occur. The examiner reported that there would be spontaneous resolution when the symptoms occurred and that there was no clear precipitating cause. The examiner indicated that the Veteran had been treated three times for the same problem and that he was treated with a cervical collar and muscle relaxants, with a good result. The December 1985 objective separation examination report included a notation that the Veteran's spine and other musculoskeletal systems were normal. The service treatment records for the Veteran's second period of service from July 1987 to October 1989 also show treatment for neck or cervical spine complaints. A May 1989 treatment entry noted that the Veteran complained of a sharp pain in the back of his neck that began that morning. The Veteran reported that he was presently noticing some burning and stiffness. It was noted that the Veteran had a past history of a cervical strain in 1985, with a negative X-ray. The impression was cervical nerve irritation/compression. Post-service private and VA treatment records show treatment for variously diagnosed cervical spine problems. A June 1986 VA general medical examination report noted that the Veteran reported that his neck ached while he was in the service and that he was told it was a muscle spasm. He stated that he was treated with muscle relaxants. It was noted that the Veteran had no complaints referable to the neck as far as chronic pain, loss of motion, or numbness. As to diagnoses, the examiner indicated that the Veteran's neck was perfectly normal, clinically. A treatment entry from Kaiser Permanente, with an illegible date, related that the Veteran was seen for left neck pain that radiated to the mid scapular of the left shoulder to the underarm. The Veteran described the pain as intermittent pinching. The examiner reported that the Veteran was positive for multiple injuries including a motor vehicle accident, a motorcycle accident, and falls, with cervical spine and lumbosacral spine injuries. It was noted that the Veteran also had a history of wearing a cervical collar. The assessment was intermittent cervical spine pain related to multiple traumas. A November 1992 radiologic consultation report, as to a cervical spine series, from the Permanente Medical Group, Inc., noted that the Veteran had multiple traumas to the cervical spine. The examiner indicated that there was no significant abnormality. A January 1993 treatment entry from Kaiser Permanente indicated that the Veteran was seen for a sudden onset of cervical spine pain. He reported that he was lifting two panels of fiberglass and that he felt pain in his neck and back. The diagnosis was a sprain. An August 1997 treatment entry from Kaiser Permanente noted that the Veteran was seen for acute neck pain that began that morning. He stated that he had pain in the left lateral neck and shoulder area and that he had taken Soma. The assessment was neck strain. A February 1999 treatment entry from, apparently, the Hill Physicians Medical Group noted that the Veteran complained of neck pain. The Veteran reported that he possibly pinched a nerve or pulled something out of place that morning. It was noted that the Veteran had a history of a neck injury in 1980. The assessment was cervical strain. A March 2007 VA spine examination report, with a May 2007 addendum, essentially referred to the Veteran's thoracic spine, and not to a cervical spine disability. An April 2011 VA spine examination report noted that the Veteran's claims file was reviewed. The Veteran reported that he was involved in a motor vehicle accident in 1985 and that he first suffered from back pain at that time. He indicated that he had pain in his upper thoracic area, as well as pain in his cervical spine area. He stated that he was put in a cervical collar and treated with muscle relaxants and pain medication. The Veteran specifically maintained that he suffered a neck injury, whiplash, in the motor vehicle accident in June 1985. He indicated that he had severe flare-ups of cervical and thoracic pain. The Veteran reported that he had occasional numbness to the third, fourth, and fifth digits of the right hand, as well as some numbness to the same distribution of his left hand. He stated that the numbness occurred more often in the right hand. He reported that he had cervical spine pain and that inactivity or poor posture seemed to cause the pain to increase. The Veteran indicated that standing on concrete also seemed to increase his cervical spine pain. He also reported that he had radiating pain into his right hand and fingers. The diagnoses were mild degenerative disease in the cervical spine and minimal right thoracic spine scoliosis. The examiner commented that the Veteran's degenerative disease in the cervical spine and minimal thoracic spine scoliosis was not caused by or the result of a motor vehicle accident in June 1985. The examiner reported that X-rays performed at the time of the accident were negative. The examiner indicated that the injury was diagnosed as cervical strain. The examiner stated that the Veteran's current diagnosis was mild degenerative disease of the cervical spine and that those two diagnoses were unrelated. The examiner remarked that strain does not cause degenerative disc disease. A November 2011 VA neck (cervical spine) conditions examination report included a notation that the Veteran's claims file was reviewed. The Veteran reported that his cervical spine problems started in 1985 as a result of a motor vehicle accident during service. He stated that he was rear ended the day before he deployed to Spain. The Veteran indicated that he was not seen or treated in the emergency room, but that when he went to Spain, he turned his head and had immediate pain in the neck and back. He stated that he was treated for pain, at that time, and placed in a cervical collar. The Veteran reported that several months later, while playing football, he landed on his back on the top of a sprinkler head. He stated that he was treated for pain at that time with no X-rays. The Veteran indicated that both his thoracic and cervical initial injuries coincided together. He denied a neck or back injury from a motorcycle accident in 1983 while he was on active duty. The diagnoses were cervical strain and single level mild spondylosis. The examiner also indicated that imaging studies, as to the Veteran's cervical spine, showed degenerative joint disease. The examiner reported that the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran and his claims file indicated that the onset of symptoms of neck and back strain/spasms began after the Veteran's motor vehicle accident during service. The examiner commented that the symptoms were consistent with chronic strain and muscle spasms. The examiner reported that thoracic and cervical spine X-rays showed mild spondylosis, which was considered a normal process of aging, and was not caused by muscle strain, spasms, or a motor vehicle accident. The medical evidence shows that the Veteran was treated for neck and/or cervical spine problems on numerous occasions during his periods of service. He was variously diagnosed with cervical muscle strain, muscle spasms, and a cervical nerve irritation/compression. Additionally, post-service private and VA treatment records reflect that the Veteran was treated for cervical spine problems on numerous occasions. A VA examiner, pursuant to an April 2011 VA spine examination report, after a review of the claims file, commented that the Veteran's degenerative disc disease of the cervical spine was not caused by or a result of a motor vehicle accident in June 1985. The examiner indicated that the Veteran's injury during service was diagnosed as cervical strain, that his current diagnosis was mild degenerative disease of the cervical spine, and that those two diagnoses were unrelated. However, the examiner did not specifically address whether any cervical spine disabilities were incurred in service or were the result of any incident of service. The examiner also did not address the Veteran's treatment for cervical spine problems during both of his periods of service, as well as on multiple occasions subsequent to his period of service. Therefore, the Board finds that the examiner's opinion is of little probative value. A VA examiner, pursuant to the November 2011 VA neck (cervical spine) conditions examination, after a review of the Veteran's claims file, specifically found that the onset of symptoms of neck strain/spasms began after the Veteran's motor vehicle accident during service, noting that the symptoms were consistent with chronic strain and muscle spasms. The Veteran is competent to report neck and/or cervical spine symptoms in service, continuous neck and/or cervical spine symptomatology since service, and current symptoms that form the basis for diagnosis of disability, and the Board finds that the Veteran's account of in-service occurrence and continuity of symptoms to be credible. See Jandreau v. Nicholson, 492 F.3d 1372 (2007). Additionally, a VA examiner has specifically related the Veteran's cervical spine disability, at least in part, to his period of service. The Board finds that the evidence shows that the Veteran has a cervical spine disability that had its onset during his period service and, accordingly, service connection is warranted. ORDER Service connection for a cervical spine disability is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs