Citation Nr: 1323614 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 07-26 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from June 1978 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran appeared and testified at a Board hearing held at the RO before the undersigned Veterans Law Judge in May 2011. A copy of the transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). Thereafter, the Board issued a decision on the Veteran's appeal in August 2011 in which it granted service connection for pes planus and posttraumatic stress disorder (PTSD) and remanded to the Appeal Management Center (AMC) the claims for service connection for degenerative disc disease of the cervical spine and for a compensable disability rating for service-connected hemorrhoids for additional development. Thereafter, in a February 2013 decision, the Board granted a staged rating for service-connected hemorrhoids but again remanded the claim for service connection for degenerative disc disease of the cervical spine. The Board finds that, as to the claim for service connection for degenerative disc disease of the cervical spine, the prior remands have been substantially complied with; therefore, the Board may proceed forward with adjudicating the Veteran's claim. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Finally, the Board notes that, by letter dated in September 2012, the Veteran's representative claimed, on his behalf, that clear and unmistakable error (CUE) was made in a rating decision issued on August 20, 2011, regarding the date of claim for PTSD. The issue of CUE in the August 2011 rating decision has not 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. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his current degenerative disease of the cervical spine is related his active military service. CONCLUSION OF LAW Degenerative disease of the cervical spine was incurred in service. 38 U.S.C.A. §§ 1131, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants service connection for degenerative disease of the cervical spine, which represents a complete grant of the benefit sought on appeal. Thus, no discussion of VA's duty to notify and assist is necessary. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); See Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Walker at 1334. A second way to establish direct service connection is set forth in § 3.303(b). In Walker, the Court of Appeals for the Federal Circuit (Federal Circuit) found that, unlike subsection (a), which is not limited to any specific condition, subsection (b) is restricted to chronic diseases. "If a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. at 1335-36. In addition, the Federal Circuit found that subsection (b) provides a second route by which service connection can be established for a chronic disease, which is if "evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. at 1336. Furthermore, the Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed in § 3.309(a) regardless of the point in time when a veteran's chronic disease is either shown or noted. Id. at 1336-39. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). The Veteran contends that his current cervical spine disorder is related to trauma incurred in service. He admits that he did not have any specific injury to his cervical spine but instead claims wear and tear from his military service, especially as a cannoneer, being Airborne and Air Assault qualified (or in said units), and being a Drill Sergeant for two years. He has stated that, during service, he had many jumps from airplanes and helicopters and the constant drilling as Drill Sergeant resulted in him hurting his back and neck. He stated that he had multiple complaints of neck and back pain which is reflected in his treatment records. After discharge from his service, he said his treatment records reflect continuing complaints of neck pain. (See April 2009 statement in support of claim.) Initially, the Board notes that, as discussed below, the Veteran's claim for service connection is granted pursuant to the provisions of 38 C.F.R. § 3.303(a). Hence a discussion of service connection under the provisions of 38 C.F.R. § 3.303(b) is not necessary. Current medical evidence shows the Veteran has diagnoses related to the cervical spine of degenerative joint disease, degenerative disc disease, facet arthropathy, and degenerative arthritis. Consequently, the criterion that the Veteran has a current disability, to wit degenerative disease of the cervical spine, is met. As for an injury in service, the Veteran has stated that he received treatment for his neck pain in service. A review of the service treatment records, however, fails to show any treatment relating to his neck, although they do show multiple complaints of and treatment relating to the low back, knees and feet over many years. The Board acknowledges that the service treatment records show that, in October 1985, he underwent X-rays of the cervical spine; however, this was related to complaints of left arm/shoulder weakness that eventually resolved. It is noted that these cervical spine X-rays show no abnormalities at that time. Furthermore, on multiple examinations (including one for entering airborne school conducted in April 1990) the Veteran failed to report any history of neck problems. Also, his separation examination reports from April 1991 fail to demonstrate any report by the Veteran of any injury to the neck or of his having a history of neck pain. No abnormalities of the spine were noted on examination. Furthermore, the first post-service medical evidence that the Veteran had any cervical spine disorder is an August 2003 X-ray report. The Board notes that the treatment note itself is not of record; however, the history noted on the X-ray report was that the Veteran had a motor vehicle accident 30 minutes before and was being treated for complaints of low back pain. The X-ray demonstrated that the Veteran had degenerative disc changes at the C5-6 and C6-7 levels with slight narrowing of the disc space at C6-7. The next treatment for complaints of neck pain is seen in a February 2006 VA initial Primary Care visit note. The Veteran complained of back pain from neck to lower back. The assessment was back pain. It was noted that the Veteran complained of back pain symptoms for over 20 years (also noted symptoms developed in early 1980s) that he related to heavy physical activity/lifting in the military. Symptoms have been progressing over the years. Most significant symptoms were at the base of his skull and in the lumbar spine. X-rays taken at that time of the cervical spine demonstrated chronic spondylosis changes of the lower cervical spine with prominent anterior marginal osteophytes at C5/6 and suggest of mild disc space narrowing at C6/7. There was also multilevel bilateral mild uncovertebral hypertrophy with apparent neuroforaminal narrowing at C3/4 through C6/7, and some straightening of the cervical spine lordosis. These changes were noted to be a "minor abnormality." The next treatment is seen in a November 2007 private treatment records. It was noted he had chronic neck pain, and that he wanted to apply for disability from the VA for this. He wanted to see a specialist for the neck pain. It was noted he reported that he spent years in the military and jumping out of aircraft. He requested a letter stating that his neck pain is related to his military service. Physical examination noted that he had pain with full extension/flexion and full rotation to left or right. X-rays taken that day demonstrated anterior spondylolysis in the mid cervical spine and dense anterior disc space calcifications at the C4-5 and C5-6 levels. The impression was early degenerative changes and spondylosis of the mid cervical spine. In support of his claim, the Veteran has submitted multiple medical statements from various physicians, both VA and non-VA. There are two statements from Dr. C.J., one of the Veteran's private treating physicians. In a December 2005 statement, Dr. C.J. stated that the Veteran has several disc bulges of the lumbar spine and his cervical spine is consistent with degenerative joint disease as well. Dr. C.J. stated that, in hi medical opinion, the currently existing medical condition is related to the Veteran's military service and injury sustained during his service. In a November 2007 statement, Dr. C.J. again opined that the Veteran's degenerative joint disease of the neck is directly related to his military service. In a statement dated in November 2010, Dr. M.D.R. set forth that the Veteran has been under his care for chronic neck pain. He relates a history that the Veteran was a 50-year-old man who was in the U.S. Army for 13 years and was a Paratrooper, Air Assault, and Drill Sergeant during his military career. He was also a combat arms soldier who frequently had to lift 90 to 100 pound projectiles to carry out the mission. He performed numerous road marches, combat jumps from military airplanes and helicopters and other strenuous activities as a Drill Sergeant and Paratrooper, which placed a considerable amount of stress on his entire spine, including several cervical injuries by history. After joining the military, he had developed progressive cervical pain. He has degenerative arthritis and disk disease in his entire spine. Dr. M.D.R. then stated that, after reviewing the patient's military history and examining him, it is his professional opinion that it is more likely than not that cumulative trauma sustained during the performance of his military activities, as stated above, contributed substantially to worsening his cervical spine condition. The final statement is from a VA staff physician with the Physical Medicine and Rehabilitation (PM&R) Department at the Atlanta VA Medical Center. In her August 2009 statement, she gives a history that the Veteran was a Paratrooper in 1983 and again in 1986, as well as a Drill Sergeant from 1983 to 1985. When the Veteran joined the military he was noted to have bilateral pes planus, but until that time it had caused no pain or other problems and he did not require orthotics. After joining the military, he developed progressive bilateral knee pain, low back pain, and then neck pain - problems of which likely emerged as a direct consequence of cumulative injuries while performing his military activities, specifically, being a heavy equipment Paratrooper and Field Artillery Crewman, and participating in numerous road marches as a Drill Sergeant. Furthermore, she stated that the uncorrected bilateral pes planus likely contributed to mechanical dysfunction of the proximal joints and both aggravation and acceleration of degenerative changes in the knees and spine. He has radiographic evidence of degenerative arthritis in the knees and degenerative arthritis and disc disease in the lumbar and cervical spines. Finally, she states that, in her professional opinion, it is more likely than not that cumulative trauma to the joints of the knees and spine sustained during the performance of his military activities as stated above contributed substantially to worsening of the bilateral pes planus. Additionally, the accelerated degenerative arthritic changes in the knees and spine were more likely than not related to cumulative trauma sustained while performing the above stated military duties and these injuries were further aggravated by uncorrected bilateral pes planus. In her report, she provides the results of her physical examination. She notes that the Veteran is a well-developed, well nourished African American male who ambulated with a normal gait pattern. No pain behaviors were observed. The spine was straight with normal thoracic kyphosis and lumbar lordosis. There was no pelvic obliquity or sacroiliac joint malalignment. Cervical, thoracic and lumbar active range of motion was normal in all planes, but pain was reported on facet loading in both the cervical and lumbar regions bilaterally. Pes planus was noted but alignment was otherwise normal. Her diagnostic impression was chronic neck and low back pain due to multilevel degenerative disc disease and facet arthropathy. In conjunction with his claim, the Veteran was provided with VA examination in September 2011. At this examination, the Veteran reported he had pain in the neck in the military. On leaving the military, the Veteran reported he joined the postal service and worked there for 17 years. He stated that, over the years, he went to Kaiser seven times. That day, he complained of having pain in the back of the neck going to the left shoulder without radiation to the hands. After review of the claims file, the examiner noted that, despite the Veteran's reports, the service records show no evidence of neck pain although he did complain of his low back, knees and feet many times. At medical examinations in July 1980, April 1990 and separation examination in April 1991, he stated no chronic back pain. As for post-military medical evidence, the examiner noted that X-rays from February 2006 of the cervical spine showed minor problems. The Veteran was seen at the Atlanta VA Medical Center and was diagnosed to have facet disease of the spine in August 2009. Magnetic Resonance Imaging (MRI) in February 2010 showed spinal stenosis. The Veteran underwent surgery in September 2010 when he had fusion of C3-5. Physical examination was positive for decreased range of motion of the cervical spine in all planes; however, there was no additional limitation of motion following repetitive-use testing; nor were there any functional loss and/or functional impairment. There was no localized tenderness or pain to palpation, no guarding, and no muscle spasm. Muscle testing, reflex testing and sensory examination were all normal in the bilateral upper extremities. The examiner further commented that the Veteran's gait was slow but normal. Leg lengths were equal. He was able to walk on tiptoe and on heels. There was no spasticity. The examiner's diagnosis was degenerative joint disease of the cervical spine. In providing a medical nexus opinion, the examiner opined that it is less likely than not that the degenerative joint disease of the cervical spine was incurred in or caused by the claimed in-service injury, event or illness. His rationale for his opinion was that (1) there were no complaints of neck pain in service; (2) in-service medical examinations and separation examination show no evidence of neck problems; (3) although the Veteran had some management for his neck after leaving service it was not until after 2006 that he was regularly managed; (4) the level of neck involvement is within limits for the Veteran's age; and (6) although Dr. M.D.R.'s opinion dated in November 2010 relates the Veteran's neck problems to service, it is not greater than a 50 percent probability. In January 2012, the RO returned the claims file to the VA examiner and requested that the examiner review medical opinions submitted by the Veteran since the September 2011 examination showing a positive relationship of his cervical spine condition and service along with service treatment records showing treatment for his shoulder and cervical spine (which the RO labeled "Tab A"). Thereafter, the examiner was asked to provide a new opinion based upon review of this new evidence. In addition, the examiner was asked to provide an opinion whether it is due to or aggravated by a service-connected disability. In February 2012, the VA examiner provided an addendum report. In the remarks section, the examiner noted that the Veteran was referred back for review of information regarding the neck injury. He stated that the Veteran did not need to be re-examined. He further commented that the new information in "Tab A" could not be found. However, in service records, there is a mention of left shoulder and left arm weakness. On October 7th to the 8th of 1985, the Veteran had left arm weakness. X-rays of the left shoulder and neck were normal. In a medical examination on October 7, 1985, the Veteran mentioned arm weakness. In subsequent medical examinations there was no mention of this condition. In his service records there is no evidence of a neck problem. Hence, the examiner stated his opinion had not changed, namely, that it is less likely than not that the Veteran's current neck problem is related to service. Thereafter, the RO issued a Supplemental Statement of the Case in August 2012 continuing the denial of the Veteran's claim and forwarded the appeal to the Board. In February 2013, the Board found that the February 2012 medical opinion was inadequate because the examiner failed to consider the evidence in "Tab A" as instructed by the RO in its January 2012 VA examination instruction. Furthermore, the Board found that the medical opinion was inadequate as the examiner failed to provide the requested opinion as to whether the Veteran's current cervical spine condition was due to or aggravated by a service-connected disability. Consequently, the Board remanded the Veteran's claim for the claims file to be returned to the VA examiner to consider the evidence in "Tab A" (which it identified for the examiner) and to provide the secondary service connection opinion requested by the RO. In a March 2013 addendum report, the VA examiner, after review of the evidence (including that in "Tab A") continued his opinion that the Veteran's current cervical spine condition is less likely than incurred in or caused by the claimed in-service injury, event or illness. His rationale was that the Veteran's service records show no evidence of neck pain although he did complain of his low back, knees and feet many times. On medical examinations in July 1980 and April 1990 and separation examination in April 1991, the Veteran stated no chronic neck pain. On February 2006 X-rays, the cervical spine showed minor problems. Thus in 2006, 15 years after leaving service and at the age of 46, the Veteran objectively had minor problems. The examiner stated that this indicates that his neck problems are consistent with the aging process. As for commenting on the favorable medical opinions, the examiner stated that the three physicians provided statements connecting various musculoskeletal ailments to the Veteran's cervical spine degenerative disease. He stated that bland authoritative statement lacking supportive rationale do not move him and invited them to identify the injuries or problems the Veteran had in service that would lead to his cervical problems to support direct service connection. Also in support of his claim, the Veteran has also provided multiple statements directly to VA with regards to his having made many jumps from airplanes and helicopters as an airborne soldier. (See April 2009 Statement in Support of Claim.) He claims he was in Airborne and Air Assault units and points to the fact that he was awarded a Parachutist Badge as an indication of the many jumps he made. (See November 2009 Statement in Support of Claim.) The Veteran also submitted statements in February 2006 and May 2006 in which he states that he went to "Jump School" at Fort Benning, Georgia, and that the many jumps he made caused the pain in his neck/back. The Board finds, however, that the Veteran's report of being a Paratrooper and having been in Airborne and Air Assault units is not consistent with his unit assignments and principle duties as shown in his service records. Rather his service records show that he was essentially attached to artillery units during his entire 13 years in service except for the three years he was a Drill/Platoon Sergeant from 1985 to 1988. In addition, the Veteran's service records show that his principle duties during service included Cannon Crewman, Cargo Carrier Driver, Assembler, Motor Carriage Driver, Gunner, Ammo Section Chief, Drill and Platoon Sergeant, Howitzer Section Chief, Ammo Noncommissioned Officer, and Battalion Ammunition Sergeant, all of which are essentially duties relating to artillery units. Nevertheless, the service records also show that the Veteran participated in Air Assault School and Airborne School in 1988 and 1990 during which, as part of this training, he likely made many jumps from helicopters and airplanes. In weighing the evidence, including the Veteran's lay statements and the medical opinions of record, the Board finds that a reasonable doubt is raised as to whether the Veteran's current cervical spine disorder is related to his military service, especially wear and tear on his spine resulting from his various physical activities in service including as a cannon crewmember, a drill sergeant and from having made jumps while attending Air Assault and Airborne Schools. In making this finding, the Board acknowledges that the probative value of the favorable medical opinions is lessened as they are based on an inaccurate factual history of the Veteran's service, to wit the Veteran's report of being a paratrooper, and/or they fail to provide a complete rationale for the opinion given. The Board notes, however, that the two most probative opinions, those from Dr. M.D.R. and the VA PM&R physician, do not completely rely upon the Veteran's inaccurate report of having been a paratrooper but also rely on his history of being in artillery and a drill sergeant. Also simply because the Veteran's report of being a paratrooper is not accurate, the Board cannot say that he did not make many jumps because he did attend Air Assault and Airborne Schools. Thus, to the extent these opinions relied on the Veteran's report of having made jumps from aircraft in service, the Board cannot say that they are completely lacking in probative value. Furthermore, the Board finds that the VA examiner's opinion lacks probative value as well because of flaws in his rationale. First, the examiner failed to comment on the August 2003 cervical spine X-ray report as the first post-service evidence that the Veteran had a cervical spine disorder. Instead, he relied upon the February 2006 VA treatment records as being the first evidence of the Veteran's current cervical spine disorder. Second, it does not appear that the examiner considered the Veteran's report of an onset in service of neck pain and of having continuous symptoms since service. Rather the examiner relied upon the fact that the service treatment records failed to show any injury or treatment for neck problems in service, which is not appropriate since the Veteran is competent to state when his neck pain started and that he has had continuous neck pain since. Consequently, the Board finds that it cannot give more probative value to any single medical opinion over any other opinion and thus the medical opinions are in equipoise as to whether the Veteran's current cervical spine disorder is related to his military service. In addition, the Veteran's competent, although not quite credible, reports of his military activities, as well as having an onset of neck pain in service with continuous symptoms since, is in equipoise when compared against the contemporaneous service records. As the evidence is in equipoise, reasonable doubt must be resolved in the Veteran's favor. In doing so, therefore, the Board must find that service connection for the Veteran's current degenerative disease of the cervical spine is warranted. ORDER Entitlement to service connection for degenerative disease of the cervical spine is granted. ___________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs