Citation Nr: 1333603 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 12-01 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from May 1962 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. In November 2012, the Board reopened a previously denied claim of service connection for a cervical spine disability and remanded the claim to the agency of original jurisdiction (AOJ) for additional development. In April 2013, the Board requested a medical expert opinion pursuant to 38 C.F.R. § 20.901 (2013). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has a neck fracture that pre-existed his active military service. 2. The Veteran's pre-existing neck fracture increased in disability during active military service and the increase was not clearly and unmistakably due to the natural progress of the disease. 3. The Veteran's cervical spine disabilities other than neck fracture did not have their onset during, or are otherwise related to, his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for neck fracture based on service aggravation have been met. 38 U.S.C.A. §§ 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2013). 2. The criteria for service connection for cervical spine disabilities other than neck fracture have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision as to the claim on appeal has been accomplished. Through September 2010 and November 2010 notice letters, the RO notified the Veteran of the information and evidence needed to substantiate his underlying claim of service connection. The letters provided the Veteran with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also finds that the September 2010 and November 2010 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In those letters, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letters asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his claimed disability. Consequently, a remand of the service connection issue for further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The Veteran's service treatment records have been obtained and associated with the claims file, as have treatment records from the VA Medical Centers in Anchorage, Alaska, and Seattle, Washington. In this regard, the AOJ substantially complied with the Board's November 2012 remand instructions by obtaining both historical and more recent VA treatment records from those facilities. Additionally, available records from multiple private treatment providers identified by the Veteran have also been obtained. Pursuant to the Board's November 2012 remand, in a December 2012 letter, the AOJ asked the Veteran to aid VA in requesting decades-old records from private facilities. He did not respond or provide an authorization for release of records thereby frustrating the duty to assist. The Veteran was notified in a March 2013 supplemental statement of the case of the records that could not be obtained. Moreover, he was afforded a hearing before the Board in July 2012, the transcript of which is of record. Furthermore, in February 2011 and December 2012, the Veteran was provided VA examinations in connection with his claim, the reports of which are of record. The Board also requested a medical expert opinion that was provided in May 2013. The reports combine to provide sufficient evidence regarding the origin of the Veteran's claimed cervical spine disability and whether any pre-existing cervical spine disability was aggravated by military service. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one). Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. II. Analysis The Veteran asserts that he has a cervical spine or neck disability as a result of his active military service. He acknowledges that he was involved in a motor vehicle accident prior to service in which he injured his neck. However, the Veteran believes the injury was healed by the time he entered service wherein he incurred a new neck injury. He maintains that any current cervical spine disability is related to the in-service neck injury. In the alternative, if the Veteran did have a pre-existing cervical spine disability, he argues that the disability was aggravated by his military service. Thus, he contends that service connection is warranted for a cervical spine disability on a direct or aggravation basis. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In addition, certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b). A pre-existing disease or injury noted at entry will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2013). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). The evidentiary standard of clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Horn v. Shinseki, 25 Vet. App. 231, 234-35 (2012). The Veteran's service treatment records contain a December 1961 enlistment examination where the Veteran reported experiencing a whiplash of his neck in a 1960 motor vehicle accident. Significantly, the report noted as a defect an old fracture of the neck that was not considered disabling. Thus, for the specific disability of neck fracture, the presumption of soundness does not apply because neck fracture was noted on the entrance examination. Therefore, the service connection provisions of aggravation apply to this pre-existing cervical spine disability. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). However, the Veteran is still presumed to have been in sound condition for other cervical spine disabilities that are not noted as a defect on the entrance examination. Pre-existing Neck Fracture The first step in analyzing the aggravation portion of the claim is to determine whether the pre-existing neck fracture increased in disability during service. The Veteran has the burden of proving this element of the claim. See Horn, 25 Vet. App. at 235 ("Under section 1153, however, the appellant bears the burden of showing that his preexisting condition worsened in service. . . ."). Additionally, a temporary flare-up does not constitute an increase in disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) ("Accordingly, § 1153 requires an increase in the severity of the preexisting condition, as distinguished from the mere recurrence of manifestations of the pre-service condition. Evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability."). See also Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The service treatment records document complaints involving the neck. In July 1962, the Veteran was seen for sudden onset of mid back pain during physical training. He had marked pain of the middle scapular areas without any demonstrable spasm. On two occasions later that month, it was noted that the Veteran had been involved in a motor vehicle accident in 1960 and he had broken his neck. In September 1962, the Veteran complained of chronic neck pain and it was noted that he had a whiplash injury in 1960. Later that month, it was detailed that the Veteran was involved in a motor vehicle accident in 1960 when there was a head on collision with a logging truck. The entry noted that a majority of the symptoms were then in the posterior neck with occasional headache. Physical examination revealed normal range of motion of the neck and no tenderness over the spines. There was no muscle atrophy and there was good strength in the upper extremities without neurologic deficit. X-rays were negative. The impression was psychophysiologic musculoskeletal reaction. In March 1963, the Veteran was seen with a history of a motor vehicle accident in 1960, and occipital and neck pain since that time. He was able to get some relief with a relaxant. An April 1963 entry reflects that the Veteran was sore in his upper back. He had just come back from field work where he did heavy lifting. No diagnosis was made. Later in April 1963, the Veteran was seen for pain in the interscapular and rhomboid area. It was noted that he first felt pain while lifting about five weeks earlier. X-rays and physical examination were negative. In May 1963, the Veteran had moderate improvement in the interscapular area. A July 1963 entry notes that the Veteran had previous whiplash that existed prior to service. He was referred to the orthopedic clinic where it was noted that he had stiffness in his neck, and occasional tingling in his left arm and hand. Examination revealed full range of motion of the cervical spine and shoulders with normal muscle mass and function. Reflexes were intact and x-rays were negative. The impression was cervical strain with no evidence of a disc at that time. The Veteran was put on a temporary physical profile in August 1963 for neck strain. For one month, he was not to handle heavy materials, do overhead work, pull-ups, push-ups, or to wear a steel helmet. In January 1964, the Veteran complained of pain in the cervical spine region. He received treatment with moist heat, traction and ultrasound. The Veteran had moderate relief of pain. No separation examination is of record. These service records provide some evidentiary support that the Veteran's pre-existing neck disability increased in severity during service as he was treated for complaints involving the neck on no fewer than ten occasions spanning each year he was in service. Thus, on their face, the records tend to reflect an increase in disability particularly given that there is no separation examination by which to compare to the results of the entrance examination. Post-service evidence relevant to the question of in-service aggravation includes the Veteran's submitted statements and hearing testimony. As early as his July 1964 original application for benefits, the Veteran reported that his neck condition was aggravated by service. He has since consistently reported that a fellow soldier fell on his head during service when they were participating in a repelling exercise during training. The Veteran has stated that his neck was injured further at this time. Additionally, the Veteran submitted a May 2010 letter from fellow service member, L.G., who recalled that the Veteran injured his neck when another soldier fell on his head during training. Moreover, the Veteran submitted an August 2010 letter from a nurse, B.H., who recollects that she treated the Veteran in 1963 for a neck injury that occurred during training. She personally administered the ultrasound treatments. Although the injury as related by the Veteran is not explicitly documented in the service records, he is competent to attest to matters that he has observed. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) ("Competent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge."). The Board finds his statements as to the in-service neck injury credible given the consistency of his statements, the supportive statements made by L.G. and B.H., and the multiple instances of treatment for neck problems during service that reference training and the Veteran's duties. Thus, this post-service lay evidence provides some evidentiary support that the Veteran's pre-existing neck disability increased in severity during service given that the in-service manifestations appear to be from a specific injury rather than merely a flare-up of the pre-existing neck fracture. As to the post-service medical evidence relevant to the question of aggravation, the February 2011 VA examiner, who is a physician, could not provide an opinion on the matter with resorting to speculation. In discussing the matter, the examiner appeared to believe that the Veteran did have a pre-existing disability, but that there were too many unknowns to determine if there was in-service aggravation without resorting to speculation. The December 2012 VA examiner, who is a physician's assistant, found that there was no clear and convincing evidence in the medical records of an incident during active duty that would have aggravated the prior existing condition beyond its natural progression and, therefore, was unable to opine for service aggravation. The examiner's primary explanation was that it would have been expected for the Veteran to report the in-service injury when he made his neck complaints during service. To an extent, the examiner found the Veteran's history not to be credible. However, the Board has found his history of an in-service injury from a fellow soldier falling on his head during training to be credible. Thus, the examiner's opinion in fact leaves open the possibility of in-service aggravation as the examiner implied that there could have been aggravation if the injury had occurred. Finally, a VA physician, who is a Chief of Neurosurgery, provided the May 2013 opinion on the matter pursuant to the Board's April 2013 request. The physician gave the opinion that it is possible that the fall of the soldier on the Veteran's head may increase the severity of the pre-existing neck fracture, but it is unclear that this is the case, and not definitive to a 50 percent probability. The physician stated that the mechanism however could potentially be severe enough, but the documentation is insufficient to make the judgment. In consideration of the evidence of record, including the service treatment records, the lay testimony submitted by the Veteran and the medical expert evidence, the Board finds that this evidence at the least raises a reasonable doubt as to whether the Veteran's pre-existing neck fracture increased in disability during service. The evidence tends to show that the Veteran's neck fracture was not disabling at entrance and that it became worse after the in-service injury as reflected in the multiple instances of treatment for neck problems. When reasonable doubt is resolved in the Veteran's favor, the Board finds that the Veteran's pre-existing neck fracture increased in disability during service. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The second step in analyzing the aggravation portion of the claim is to determine whether the increase in disability of the pre-existing neck fracture during service was clearly and unmistakably due to the natural progress of the disease. VA has the burden of rebutting the presumption of aggravation. See Horn, 25 Vet. App. at 235 ("Once the veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease."). Given the finding that the Veteran's pre-existing neck fracture worsened on account of an in-service injury, the Board cannot find that the increase in disability was undebatably the result of the natural progress of the disease. Additionally, the medical expert evidence does not support such a finding. For instance, the May 2013 opinion notes that it is undebatable that the increase is in part due to the natural progress of the disease. Thus, at least some of the increase is not due to the natural progress according to the VA physician. A high evidentiary standard is required to rebut the presumption of aggravation and this is not so in the Veteran's case. Because the presumption of aggravation is not rebutted, the Board concludes that service connection is warranted for neck fracture based on service aggravation. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Other Cervical Spine Disabilities The evidence of record reflects that the Veteran has cervical spine disabilities other than neck fracture. During the pendency of the claim, VA treatment records and examination reports show diagnoses of degenerative spondylosis, stenosis, degenerative disc disease and degenerative joint disease of the cervical spine. Private treatment records show similar findings. The salient question for this aspect of the claim is whether the Veteran's other cervical spine disabilities had their onset during, or are otherwise related to, his active military service. The Veteran has indicated that he has had neck problems since service and the post-service treatment records regularly note a history of neck problems since the 1970's. This invokes the theory of "continuity of symptomatology," which can substitute for a nexus between a current disability and service for certain chronic diseases. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013) (holding that section 3.303(b) provides for an alternative path to satisfy the nexus requirement of the three-part test for service connection, but only for the chronic disease set forth in 38 C.F.R. § 3.309(a)). As the Veteran has been diagnosed with degenerative joint disease of the cervical spine, and arthritis is listed in section 3.309(a), continuity of symptomatology is potentially applicable. In the Veteran's case, continuity of symptomatology is not dispositive as he is being awarded service connection for neck fracture, which has existed since service. Instead, for arthritis and the other identified cervical spine disabilities, their origin and possible relationship to service is a complex medical question. It is not unreasonable for a lay person such as the Veteran to believe that all of his cervical spine disabilities are related to past injury, but the Board accords the Veteran's statements and opinions little probative value given that medical expertise is necessary to answer this complex matter. In reviewing the evidence, the Board finds the May 2013 VA medical opinion to be most probative to the issue. The two other VA examiner opinions pertained primary to the question of in-service aggravation of the pre-existing neck fracture, and the VA and private treatment records did not squarely address the etiology of the other cervical disabilities other than noting a history of neck problems. In May 2013, the VA physician provided an opinion that it is not at least as likely as not that any cervical spine disability other than pre-existing neck fracture is related to the Veteran's active military service. The physician explained that the Veteran's cervical spine disability related to spondylosis in his neck may result from naturally occurring aging. The physician stated that it is clearly noted in the medical literature, to which he cited, that degenerative disease of the cervical spine worsens over time. The Board finds the May 2013 medical expert opinion to be persuasive as it was based on a review of the evidence of record, consideration of the Veteran's circumstances and information provided by medical literature. As this medical expert opinion evidence outweighs any evidence in favor of the claim, the Board finds that the Veteran's cervical spine disabilities other than neck fracture did not have their onset during, or are otherwise related to, his active military service. This includes a finding that the evidence does not show that arthritis of the cervical spine manifested to a compensable degree within one year of separation from service. In view of this finding, the Board concludes that service connection is not warranted for cervical spine disabilities other than neck fracture. As the preponderance of the evidence is against this aspect of the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for neck fracture, based on service aggravation, is granted. Service connection for cervical spine disabilities other than neck fracture is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs