Citation Nr: 1327102 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 07-09 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for cervical spine disability. 2. Entitlement to service connection for thoracolumbar spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had a period of active duty for training from January 2001 to June 2001, and a period of active duty from June 2004 to November 2005. He had service in the Southwest Asia theater of operations. The Veteran was awarded the Combat Action Badge, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in February 2011 and March 2013. A review of the record shows that the RO has complied with all remand instructions by taking appropriate action to obtain records from Fairbanks Memorial Hospital and February 2001 and March 2001 service treatment records. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran has a chronic cervical spine disability manifested by pain and some limitation of motion which is causally related to his active duty service. 2. The Veteran has a chronic thoracolumbar spine disability manifested by pain and some limitation of motion which is causally related to his active duty service. CONCLUSIONS OF LAW 1. Cervical spine disability manifested by pain and some limitation of motion was incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Thoracolumbar spine disability manifested by pain and some limitation of motion was incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The issues before the Board involve claims of entitlement to service connection for cervical spine disability and thoracolumbar spine disability. The Veteran is alleging either aggravation of preservice injuries, or disability due to injuries during active duty service. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease 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). Analysis The Board first notes that a September 2000 report of examination shows clinical evaluations of the neck and spine were normal. In his contemporaneous medical history, the Veteran again denied by checking the appropriate box a past/current history of recurrent back pain and did not indicate any neck disability. On a September 2000 applicant medical prescreening form, the Veteran denied a past medical history of back trouble and again did not indicate any neck disabilities. However, on a July 2004 medical record, the Veteran circled the appropriate response to indicate that he had received an evaluation/treatment for back pain in the last 10 years (which predates service) and explained that he had a buckle fracture in the back. At this point, the Board notes that 1995 private treatment record from Fairbanks Memorial Hospital was once of record. The Board had remanded the appeal in February 2009 and March 2013 to associate the records with the Veteran's claims file. Even with additional development, the records were not located. Fortunately, a January 2008 VA examiner provided a detailed description of the contents therein. It was noted that in September 1995, the Veteran was seen at the emergency room at Fairbanks Memorial Hospital for his back. Imaging reports showed normal cervical spine alignment. However, there was slight deformity in the anterior margin of the T5 (which was noted as "of doubtful significance"). There was similar appearance noted involving T10. Mild buckle fracture in the T-spine (T5/T6) was noted. A pre-deployment health assessment in May 2004 shows that the Veteran reported cervical spine pain on exertion as sequel of a sport injury. The medical disposition was deployable without limitation. The Veteran entered active duty in June 2004 and was deployed to Iraq. A March 2005 post-deployment screening showed that the Veteran complained of back pain. A November 2005 medical record documents complaints of neck and back pain; the Veteran indicate that he had not sought treatment for these complaints during this period of service. The Veteran filed his claim for VA benefits in December 2005. On March 2006 VA examination, the Veteran reported neck and back injury while playing soccer in high school in 1997. He stated, "I had a buckling fracture C9." He subsequently developed chronic neck and mid-back pain following that injury. The VA examiner acknowledged that the Veteran was alleging aggravation of previous injury as a result of active duty. Since the Veteran was unable to provide baseline symptoms/status prior to service, she was unable to determine whether aggravation occurred. There were no claims to review. The VA examiner diagnosed cervical and thoracic strain, which were contingent on x-ray results. However, June 2006 x-ray reports show normal cervical, thoracic and lumbosacral spine. Subsequent VA treatment records show complaints and diagnoses of pain in the neck and back. Nevertheless, the Veteran does not have current disabilities, which is evidence of no aggravation in service. A January 2008 VA examination shows that the Veteran reported a buckling fracture of his neck in October 1996 and stated he had no problems with his back until 2000 when he reinjured it during basic training. There was subjective evidence of decreased range of motion for the cervical and thoracic spine was noted. There was no diagnosis for the neck, but the VA examiner did note an old fracture of the thoracic spine that occurred in 1995 (per medical records). She noted that current imaging was unremarkable. A February 2008 addendum shows that after a review of the Veteran's claim file, the VA examiner could not opine whether the Veteran's cervical pain was a result of service. She noted that she could not opine without resorting to mere speculation since current imaging was negative. She added that there was no objective evidence of cervical spine disability. As for the thoracic spine, she noted a 1995 T5-T6 buckle fracture. She noted that current imaging is unremarkable. The Veteran subjectively demonstrates decreased lumbar range of motion. Objectively, he was able to sit at a 70 degree angle, bend over to untie his shoes without any limited motion, which she noted would require a minimum of 90 degrees. February 2008 VA x-rays showed views of the cervical and thoracic spine were unremarkable. An August 2008 VA magnetic resonance imaging showed that the cervical spine was normal. There was no intra or extradural abnormalities. There was normal alignment of the vertebral bodies and no paraspinous masses or fluid collections present. February 2011 and February 2012 VA treatment records found in Virtual VA show assessments of back pain and neck pain. The above evidence paints a somewhat unclear picture of the nature and onset of the claimed cervical spine and thoracolumbar spine disabilities. Although it does appear that the Veteran had some type of fracture of the spine in the late 1990's prior to any service, there is no contemporaneous evidence of any complaints or symptoms during the January to June 2001 period of active duty for training. There is therefore no basis for finding aggravation of the pre-service fracture(s) during this period. Moreover, x-ray studies over the years have shown no evidence of any fracture(s) and medical personnel have found no residuals related to the fracture(s). At any rate, the Board sees no need to undertake a detailed analysis of the period of active duty for training since the evidence does provide a basis for granting the claims as related to the Veteran's period of active duty service from June 2004 and November 2005. In this regard, the Veteran has reported injuries during such service and at least on one occasion has related the injuries to a combat situation. Although there is some inconsistent history reported by the Veteran as to time of onset, the Veteran's statements regarding neck and back pain during his period of active duty are supported by the fact that service records do in fact document pertinent complaints in March and November 2005. The fact that the Veteran was having neck and back symptoms during and shortly after his period of active duty service is further supported by the fact that he filed his claim for these benefits in December 2005, the month after his discharge. Subsequent VA records show continuing complaints since that time. These items of evidence compel a finding that the Veteran did report neck and low back complaints during his period of active duty service and that he has continued to report these complaints to VA medical personnel since then. Again, the Veteran's neck and back complaints have not been medically attributed to the reported fracture(s) in the 1990's. However, the evidence does show that they were manifested during the period of active duty. Even if the May 2004 pre-deployment assessment is viewed as evidence of a pre-existing cervical spine disability (or pre-existing thoracolumbar spine disability), the complaints documented during the Veteran's subsequent active duty service appear sufficient to show aggravation. One potential problem is that the medical evidence to date does not clearly attribute the neck and back complaints to a medical diagnosis. It does appear from all the normal x-rays that the disorders are not ones that would normally be detected by radiological studies. There is at least one mention of strain, and the Board notes here that VA records dated in 2011 show that muscle relaxants had been prescribed. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). However, in the present case there is some evidence in VA records of some limitation of motion as well. Under these circumstances, the Board believes that the disabilities are ones for which service connection may be granted. For the reasons set forth above, the Board finds that service connection is warranted for chronic cervical spine disability manifested by pain and some limitation of motion and for chronic thoracolumbar spine disability manifested by pain and some limitation of motion. In reaching this conclusion, the Board has resolved all reasonable doubt in the Veteran's favor. ORDER Service connection for chronic cervical spine disability manifested by pain and some limitation of motion is warranted. Service connection for chronic thoracolumbar spine disability manifested by pain and some limitation of motion is warranted. The appeal is granted as to both issues. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs