Citation Nr: 1323172 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 09-15 206A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected degenerative joint disease of the left knee. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from August 1984 to July 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO) and Board remand. In May 2009, the Veteran requested a hearing at the RO before a Veterans Law Judge (Travel Board hearing). In May 2011, in lieu of a Travel Board hearing, he opted for a videoconference hearing at the RO before a Veterans Law Judge sitting in Washington, DC. However, before he could be scheduled for a hearing, his representative indicated on his behalf in May 2011 that he wished to withdraw his hearing request. In April 2012, the Veteran filed a claim for entitlement to a total disability rating for compensation based upon individual unemployability (TDIU). That issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran has a current diagnosis of status post cervical spine fusion with disc space replacement with retrolithesis at L5-S1, now with paralysis of the bilateral lower extremities and neurogenic bladder, also affecting the colon causing inability to have bowel movements. 2. The evidence of record does not demonstrate that the Veteran's cervical spine disability is etiologically related to service. 3. The probative evidence of record does not show that the Veteran's cervical spine disability was caused or aggravated by his service-connected degenerative joint disease of the left knee. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION With regard to the Veteran's claim to for entitlement to service connection for a cervical spine disability, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A March 2008 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Additionally, the Veteran's records from the Social Security Administration (SSA) have been associated with his claims file. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). A VA medical opinion was obtained in December 2012, and the Board finds that it is adequate to determine the etiology of the Veteran's cervical spine disability. Specifically, the opinion was based upon a thorough review of the evidence in the claims file and provides supporting explanation and rationale for the opinion rendered. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Veteran contends that he injured his cervical spine in a motor vehicle accident in September 2004, and that the accident was attributable to his service-connected left knee disability. He alleges that, in order to avoid an oncoming speeding car that was taking up both lanes of the road, he attempted to downshift his manual vehicle, but that his left knee locked up and prevented him from doing so at that moment. He then reportedly tried to pull off of the pavement and, in doing so, his vehicle flipped over and he sustained numerous injuries, including those to his cervical spine. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability which is shown to be proximately due to, the result of, or chronically aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown , 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran's service treatment records are negative for any complaints of or treatment for a cervical spine disability. An April 1984 entrance examination shows that the spine was normal at that time. Similarly, a July 1988 separation examination reflects that the spine was normal. A September 2004 traffic collision report form reveals that the Veteran was involved in a motor vehicle accident on September 24, 2004. The report indicates that the Veteran's vehicle was traveling at a high rate of speed, ran off onto the right shoulder, lost control, crossed the center line, went into a ditch on the left shoulder, and overturned on the right side. The Veteran was ejected on impact. The report reflects that the speed limit was 45 miles per hour, and it was estimated that the Veteran was traveling at 70 miles per hour. At the time of the accident, the weather was clear and it was daylight. Contributing factors to the accident were reported to include the Veteran driving too fast for conditions, exceeding the authorized speed limit, and running off of the road. The road conditions were described as a level curve, and the road was dry. In October 2004, the Veteran was found not guilty of the charge of driving a vehicle at a greater speed than is reasonable under the conditions. A September 2004 private treatment record from Beaufort Memorial Hospital reflects the Veteran was admitted to the hospital following a motor vehicle accident. He complained of neck pain at that time. The report notes that the Veteran was ejected from a vehicle that rolled over in a ditch, and reported that he was not wearing his seat belt. He was found face down on the grass near the vehicle, which was turned up onto its passenger side. The Veteran was unresponsive at first, but did awaken and could answer questions and was oriented appropriately. The Veteran was immobilized and transported. He reported to drinking some beer that day and stated that he was unsure of the events that caused the accident. Physical examination of the extremities at that time showed no obvious deformity. Distal pulses were 2+, and dorsalis pedis pulses were 2+, bilaterally. Laboratory studies showed alcohol content to be 281. A computed tomography (CT) scan of the cervical spine showed a fractured spinous process at C6-C7, and a fracture of the pedicle on C6 on the left and of the lamina on C7 on the left. The diagnoses were acute spinal cord injury, possible T4 level and cervical spine fractures at C6 and C7. The Veteran was then transferred to Memorial Health University Medical Center. Private treatment records from Memorial Health University Medical Center for the period from September 2004 through November 2004 reveal that the Veteran was admitted to the hospital in September 2004 following a motor vehicle accident. The diagnoses on discharge in November 2004 included multiple fractures at C5 through C7, to include C6 bilateral lamina fracture extending into facet joint with C7; C7 lamina fracture complete spinal cord injury at T1; C5 through T1 instability status post ACDF C5 through T1; and T1 paraplegia. A September 2004 history and physical reflects that the Veteran was ejected from his vehicle during a motor vehicle collision rollover. The Veteran was reportedly talking at the scene and moving his arms. Physical examination of the neck showed multiple deep lacerations on the right side. Examination of the extremities reveals that all four extremities showed no deformity and no skeletal instability. Sensory and motor deficits were unable to be obtained. In September 2004, the Veteran underwent several surgeries for his cervical spine injury, including anterior cervical discectomy at C5-C6; anterior cervical discectomy at C6-C7; anterior cervical discectomy at C7-T1; arthrodesis with banked bone dowl at C5-C6, C6-C7, and C7-T1; fixation at C5 to C6 to C7 to T1 with anterior plating system; open reduction of cervical spine dislocation; and use of allograft structural at three levels. The preoperative and postoperative diagnoses were multiple cervical spine fractures at C6-C7 and T1; complete spinal cord injury at T1 level; and cervical instability. VA treatment records from November 2004 reflect that the Veteran was admitted for a six-week rehabilitation program. The diagnosis upon admission was T2 myelopathy American Spinal Injury Association (ASIA), category A. In a November 2004 VA treatment record, the Veteran reported that he was involved in a motor vehicle accident in September 2004 where he was ejected from the car and had a loss of consciousness. He stated that the last thing that he remembered was driving home from his sister's house and losing control of his vehicle. The first thing that he recalled after the accident was waking up in the Intensive Care Unit of the hospital about two weeks after the accident. The diagnoses included T2 myelopathy ASIA A. In February 2005, the Veteran was awarded SSA disability benefits based upon a primary diagnosis of vertebra with spinal cord injury. The date that disability began was determined to be September 24, 2004. In a May 2009 substantive appeal, the Veteran indicated his disagreement with the denial of his claim, as VA had not considered the possibility of his service-connected left knee giving out while he was driving. He noted that he was on medication for left knee pain and received treatment at the VAMC in Charleston, South Carolina. In September 2010, the Veteran underwent a VA spine examination. The Veteran reported that he was involved in a motor vehicle accident in 2004, and that at the time of the accident, his left knee locked while he was driving his manual transmission vehicle and had to swerve to avoid hitting another vehicle. He stated that the motor vehicle accident caused his cervical and thoracic spine injury. He explained that he underwent a fusion with hardware placement after the accident, and that he has had mid and upper back pain since the accident. He noted that the pain comes and goes and lasts up to one week, but resolves spontaneously on occasion, He indicated that he was given a back brace for his low back, which helps, but no brace for his neck, no cane, and no crutch. The examiner reported that the Veteran was wheelchair bound, as he has been paralyzed from the waist down since the motor vehicle accident. The Veteran stated that he was unable to walk at all, and used the wheelchair on a daily basis. He denied numbness, but reported decreased perception to temperature as well as tingling and burning pain in the lower extremities. He also reported bladder incontinence and erectile dysfunction. He also indicated that he has been unemployed since his motor vehicle accident in 2004. Physical examination revealed the Veteran to be in a wheelchair. He was unable to transfer from the wheelchair to the examination table. Examination of the neck showed multiple scars on the anterior neck as well as the right lateral neck. Examination of the extremities showed normal sensation in the upper and lower extremities, bilaterally. Strength was 5/5 in the upper extremities and 0 in the lower extremities, bilaterally. Deep tendon reflexes were 1+ brachial, knee, and ankle, bilaterally. There was atrophy to the lower extremity musculature in both legs, but there was equal muscle atrophy in the upper and lower leg. Examination of the spine showed that the cervical and thoracic spines were tender to palpation as well as the paraspinous muscles of those areas. The lumbosacral spine was nontender but difficult to assess, as the Veteran was in a wheelchair. Range of motion of the cervical spine showed flexion to 30 degrees with pain, extension to 20 degrees with pain, right and left lateral flexion to 20 degrees without pain, and right and left lateral rotation to 25 degrees with no pain. There was no change in range of motion following three repetitions. There was no additional limitation of motion based upon pain, fatigue, weakness, or lack of endurance following repetitive use. The diagnosis was status post cervical spine fusion with disc space replacement with retrolithesis at L5-S1, now with paralysis of the bilateral lower extremities and neurogenic bladder, also affecting the colon causing inability to have bowel movements. After reviewing the Veteran's claims file, the examiner concluded that an opinion relating the Veteran's current cervical and thoracic spine disabilities to his motor vehicle accident in 2004 would require mere speculation and could not be produced based upon objective evidence. The examiner explained that there was no evidence showing that the left knee was the cause of the motor vehicle accident. In an August 2012 opinion, J. Tobin, M.D. stated that the Veteran informed him that the reason that he had a motor vehicle accident was because of his left knee pain and locking up of his left knee, and that he had no reason to doubt the Veteran's account of the incident. Dr. Tobin did not indicate if he reviewed any evidence in preparing his opinion, as the only evidence that he mentioned in support of his opinion was the Veteran's lay statements. In a December 2012 VA opinion, after reviewing the Veteran's claims file, the VA examiner concluded that it was less likely than not that the Veteran's cervical spine disability was related to his service-connected left knee disability. The examiner explained that a February 2004 VA treatment record showed the Veteran to be doing well and taking Lodine for his knees with benefit. At that time, the knees were stable with no swelling and good range of motion. Moreover, the available records following the Veteran's September 2004 motor vehicle accident do not mention any reports of his knees locking. The examiner stated that the motor vehicle accident was the reason for the Veteran's cervical spine disability and present condition of paraplegia, and there was no evidence that his service-connected left knee disability was the cause of the motor vehicle crash. After thorough review of the evidence of record, the Board concludes that the probative evidence of record does not show that entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected left knee disability, is warranted. There are current diagnoses of a cervical spine disability, including status post cervical spine fusion with disc space replacement with retrolithesis at L5-S1, now with paralysis of the bilateral lower extremities and neurogenic bladder, also affecting the colon causing inability to have bowel movements. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The service treatment records are negative for diagnoses of or treatment for a cervical spine disability, and the Veteran does not contend that he injured his cervical spine during active duty service. Thus, there is no evidence of in-service incurrence of a cervical spine disability. Further, there is no evidence suggesting that the Veteran's cervical spine disability is directly related to service. Accordingly, service connection for a cervical spine disability on a direct basis is not warranted. Service connection is also not warranted on a secondary basis, as the weight of the probative evidence of record also does not show that the Veteran's current cervical spine disability was caused or aggravated by his service-connected left knee disability. The Veteran alleges that his left knee locked while he was driving his vehicle, which caused his September 2004 motor vehicle accident, resulting in his cervical spine disability. The Board acknowledges that the Veteran's statements are competent evidence of observable symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). Although the Veteran is competent to report that his left knee locked at the time of his September 2004 motor vehicle accident, the Board does not find the Veteran's statements to be credible in this instance. See Buchanan v. Nicholson, 451 F.3d 1331,1336-37 (Fed. Cir. 2007) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). Review of the VA treatment records and private treatment records in the claims file pertaining to the Veteran's left knee disability from 1988 to September 2004 do not show any complaints of or treatment for locking of the left knee. The Veteran's documented left knee symptoms prior to September 2004 included left knee pain and stiffness. There is no evidence that he reported or was treated for left knee locking prior to his motor vehicle accident in September 2004. Further, in a February 2004 VA treatment record, the VA physician indicated that the Veteran was taking Lodine for his knees with benefit, and that the Veteran complained of knee pain. At that time, the knees were stable with no swelling and good range of motion. Moreover, there is no evidence in the accident report or in the medical records from September 2004 through November 2004 suggesting that the Veteran's left knee was involved in the cause of his accident. To the contrary, the accident report suggests that the Veteran was speeding at the time of the accident, and a September 2004 private treatment record notes that the Veteran stated that he was drinking beer prior to his accident. At the time of the accident, the Veteran also reported that he was unsure of the events which caused his accident. The evidence of record does not show any mention of his belief that his service-connected left knee disability played a role in his motor vehicle accident until his January 2008 claim. Accordingly, the Board does not find the Veteran's lay statements that his left knee locked resulting in the motor vehicle accident to be credible and entitled to substantial probative value. The Board acknowledges that there are competing medical opinions of record with regard to the etiology of the Veteran's cervical spine disability. As noted above, in an August 2012 opinion, Dr. Tobin opined that the Veteran's left knee locked up, causing his motor vehicle accident. Dr. Tobin explained that the basis for his opinion was his finding that he had no reason to doubt the Veteran's account of the incident. However, as explained above, the Board does not find the Veteran's statements regarding the cause of his accident to be credible. As Dr. Tobin's opinion was based solely on the Veteran's lay statements, to which the Board does not accord significant probative value, Dr. Tobin's opinion is also entitled to little probative weight. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (holding that a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional). In contrast, the Board affords the December 2012 VA opinion significant probative value. The VA examiner's opinion was based upon a thorough review of the evidence in the claims file, including the evidence at the time of the accident, which was silent as to any left knee symptoms or left knee involvement in the motor vehicle accident. Moreover, the examiner's opinion was also based upon the medical evidence prior to the Veteran's motor vehicle accident, which suggested that the Veteran's only left knee symptoms were pain. Further, the examiner provided supporting explanation and rationale for his opinion that the Veteran's cervical spine disability was not related to his left knee disability, citing the lack of left knee symptomatology prior to the accident as well as the lack of left knee complaints or symptomatology at the time of the accident. Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that factors for assessing the probative value of a medical opinion include access to the claims file and the thoroughness and detail of the opinion); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (finding that the failure of the physician to provide a basis for an opinion goes to the weight or credibility of the evidence). The evidence does not support a claim based on aggravation of a disability by a service-connected disability, since there is no assertion that the Veteran's service-connected left knee disability aggravated his cervical spine disability, only that it is claimed to have caused the car accident that injured the Veteran's cervical spine. The Board finds that the Veteran's service-connected left knee disability did not contribute in any way to the car accident, but that the accident was related to other factors as described above. Accordingly, as the competent and probative evidence of record does not relate the Veteran's cervical spine disability to his active duty service or to his service-connected left knee disability, service connection for a cervical spine disability is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the probative evidence is against the Veteran's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a cervical spine disability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs