Citation Nr: 1416516 Decision Date: 04/14/14 Archive Date: 04/24/14 DOCKET NO. 03-16 750 ) 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 lumbar spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to April 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In March 2008, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The Board remanded this issue for further evidentiary development in September 2005, July 2007, June 2009, and February 2013. The requested development was completed, and the case was returned to the Board for further appellate action. The Board then obtained an opinion from an independent medical expert. The Veteran and his representative were provided a copy of the November 2013 medical opinion and allowed 60 days to submit additional evidence or argument. The Veteran's representative submitted supplemental argument in February 2014. FINDING OF FACT The Veteran's current cervical spine disability and its severity are unrelated to his military service and service-connected lumbar spine disability. CONCLUSION OF LAW The criteria for establishing service connection for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA applies to the instant claim. VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). The duty to notify was satisfied in this case by February 2004, October 2005, March 2006, June 2009, and February 2011 letters. The claim was last readjudicated in March 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records and service personnel records, VA treatment records and examination reports, private treatment records, Social Security Administration (SSA) records, and hearing testimony. The record reflects that at the March 2008 hearing the undersigned explained the issue, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. In addition, the Board notes that the case was remanded in September 2005 to issue a statement of the case; in July 2007 to provide the Veteran with a hearing; in June 2009 to provide the Veteran with proper notification, to obtain records from SSA and the Rhein-Main Air Force Base Hospital, and to provide the Veteran with a VA medical examination; and in February 2013 to obtain an addendum medical opinion. A statement of the case was issued in September 2006, and the Veteran testified before the undersigned in March 2008. Proper notice was provided in the letters noted above, and the requested medical opinions and SSA records were also obtained. Relevant records from the Rhein-Main Air Force Base Hospital were requested from the National Personnel Records Center (NPRC); however, in February and May 2010 letters the NPRC reported that no records could be found. VA notified the Veteran of the unavailability of these records and offered him an opportunity to submit additional evidence in April 2010, June 2010, and May 2011 letters. Accordingly, the requirements of the remand were ultimately accomplished and the prior remand instructions were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Medical opinions addressing the relevant questions in this case have been obtained after review of the relevant evidence, and in some instances, examination of the Veteran. These opinions include rationales for the conclusions reached by the practitioners. Therefore the Board finds that VA has obtained adequate medical opinions in conjunction with the claim. Given the above, no further action related to the duties to notify and assist is required in this case. Analysis The Veteran asserts that he has a current cervical spine disability that was caused or aggravated by his military service of service-connected lumbar spine disability. Direct Service Connection Generally, in order to establish direct service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2013); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). As medical records discussed below clearly show a current cervical spine disability, the remaining question is whether this disability is directly related to the Veteran's military service. The Veteran has alleged both combat and non-combat related events that he argues caused a current cervical spine disability. These allegations, and the presumption of in-service occurrence of certain chronic disabilities, are discussed below. A. In-Service Non-Combat Allegations The Veteran alleges that he injured his neck at the same time he injured his lumbar spine. He has addressed this incident on multiple occasions. During his hearing before the undersigned, the Veteran testified that when he grabbed a box in Germany he tore all his muscles and hurt his neck and back. Board Hearing Tr. at 3. He was reportedly hospitalized for 6 months after this injury. Board Hearing Tr. at 3. In a February 2006 statement, he reported that he hurt his neck in Germany and was not able to move anything but his eyes and mouth for 6 to 8 months. During VA neurologic treatment in April 2007, he stated that this incident occurred in 1985 and was caused by a lifting injury. He recalled that the next morning he could not move his arms or legs, but could move his neck. He was reportedly taken by ambulance to sick call and then to the hospital. He stated that it took about 6 months to be able to walk again and he was in the hospital for a year. Service personnel records reflect that the Veteran was stationed in Germany from October 1984 to November 1987. He injured his lumbar spine on June 26, 1985. A June 27, 1985 service treatment record noted that the Veteran reported to sick call via a private vehicle. He complained of low back pain for one day and stated that he injured his back the day before while trying to catch a heavy box he had dropped. The Veteran reported that his back did not hurt badly until the morning of June 27th. The assessment was acute paravertebral muscle spasm L4-L5-S1, and the plan was that he remain in his quarters for 24 hours and be referred to orthopedics for possible admission. It was noted that his condition was improved upon release. The next day, June 28th, the Veteran was a walk in to the clinic for a check up on his back. It was specifically noted that he was ambulatory. On presentation, he was in moderate distress and had a normal gait. The back had a good range of motion. The assessment was low back pain secondary to muscle spasm. An August 1986 physical therapy clinic consultation report indicates that the Veteran had a history of low back pain after catching a heavy box in June 1985 and was prescribed physical therapy with no relief. Overall, the service treatment records do not reflect any paralysis or hospitalization after the incident where the Veteran was injured while catching a falling box, nor do they note any cervical spine complaint, diagnosis, or treatment. Instead, the service treatment records indicate that while trying to catch a falling box the Veteran injured his lumbar spine - a condition for which service-connection is currently in effect. While the Veteran stated that the day after this injury he could not move his arms and legs, service treatment records show that two days after the injury he was ambulatory and had a normal gait. A July 1985 service treatment record also specifically noted that the Veteran was ambulatory when he reported to the aid station a month after the injury. This evidence is contradictory to the Veteran's report of being paralyzed after the incident where he tried to catch a falling box. In addition, the Veteran now reports being taken to sick call in an ambulance the day after his (lumbar spine) injury, while service treatment records show he arrived at the clinic in a private vehicle the day after the injury and was a walk in the day after that. Again, the Veteran's current statements are in conflict with the service treatment records. The Board recognizes that an X-ray of the neck was performed in June 1988 to rule out epiglotitis after some soft tissue was noted. There is no indication that the X-ray was done as a result of any cervical spine injury. The X-ray was reportedly within normal limits. In addition to the above incident, the Veteran has also reported being "paralyzed" during service due to other incidents. The Veteran's statements about his paralysis are contradictory to the service treatment records and in conflict with each other. During an August 2008 SSA examination, the Veteran reported that he was injured in 1987 when he fell on a steel beam hitting his back. He reported being hospitalized for a year and being paralyzed from the waist down. Service treatment records do not reflect this alleged injury or any paralysis. During VA treatment in January 2012, the Veteran stated that while working on a tracked vehicle in Germany in 1983 a spring came loose and hit him in the back. He stated that after this injury he could not move anything but his neck and spent the next year paralyzed. He further recalled that he was eventually able to walk again after 18 months. This incident is not referenced in the service treatment records. In fact, June 1983 service treatment records show that the Veteran reported to sick call two days in a row complaining of a sore throat. He arrived in a private vehicle one day. The fact that he reported to sick call, and reported via a private vehicle, suggest that he was not paralyzed at that time. A December 1994 Medical Board report indicates that the Veteran's back pain began when a box fell in 1985. This suggests that the Veteran did not injure his back and neck from being hit by a spring in 1983. Moreover, service personnel records reflect that the Veteran was not stationed in Germany until October 1984, which is against a finding that he was injured in Germany in 1983. To the extent that the Veteran may have gotten the year wrong, the Veteran's lack of paralysis during his time in Germany is discussed above. In summary, service treatment records are contrary to the Veteran's report of injuring his cervical spine at the same time as he injured his lumbar spine. In addition, the Veteran's alleged paralysis is contrary to service treatment records and his statements regarding the causes and extent of his alleged paralysis are conflicting. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility). The reported causes of the Veteran's alleged paralysis vary from grabbing a falling box to falling on a beam to being hit with a spring, and the extent of his alleged paralysis varies from being able to move only his mouth and eyes to being paralyzed from the waist down to being able to move only his neck. For the reasons above, the Board finds the Veteran's reports of a cervical spine injury during service and subsequent symptomatology to be lacking credibility. B. In-Service Combat Allegations VA has recognized the Veteran as a combat veteran. See September 29, 2011 VA Rating Decision (noting that the claimed stressor of coming under enemy fire while in Somalia was corroborated). For combat veterans, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b) (West 2002). Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. Id. The Court of Appeals for the Federal Circuit (Federal Circuit) has held that the presumption found in section 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The Federal Circuit explained that with the presumption, the Veteran did not have to attempt to establish that the event during service led to a disability following service but instead only had to show that the disability incurred in service was a chronic condition that persisted in the years following active duty. Id. at 999-1000. The Veteran has alleged that events during his combat service led to a current cervical spine disability. For example, in a February 2006 statement he indicated that wearing a helmet, jumping in and out of trucks, and being in trucks traversing bumpy roads in Somalia affected his neck. In this case, the Board finds that there is clear and convincing evidence sufficient to rebut a finding of in-service incurrence. The Veteran was afforded a VA joints examination in June 2011 where he was diagnosed with cervical spine musculoskeletal strain. The examiner opined that the diagnosis was not related to the Veteran's military service as no chronic disability was noted. The examiner explained that by the Veteran's report he began having musculoskeletal pain in the sternocleidomastoid area in 2001. Another VA medical opinion was obtained from a different VA physician in February 2013. The physician did not find any evidence to dispute the opinion offered in June 2011. After a review of the medical evidence in November 2013, an independent medical expert, a physician and Associate Professor in the Department of Neurosurgery at a University School of Medicine, noted that during the Veteran's military service there was no record of any complaint of neck or cervical spine injury or symptoms. The physician opined that there is no indication that the Veteran sustained any injuries during his military service that had a direct causal relationship to his current cervical disabilities. The Board finds that the Veteran's report to the June 2011 VA examiner, that he had an acute onset of neck pain in 2001, years after his separation from service, in combination with the medical evidence and opinions in this case, constitutes clear and convincing evidence sufficient to rebut a finding of in-service incurrence of a cervical spine disability. C. Presumption of Service Incurrence A June 2011 cervical spine X-ray revealed mild degenerative joint disease in the mid and lower cervical spine. Certain chronic diseases, such as degenerative arthritis, can be presumed related to service when a veteran has certain qualifying service and the chronic disease becomes manifest to a degree of 10 percent within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1131, 1133 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). This presumption is not for application in this case as there is no medical evidence of a cervical spine disability within one year after the Veteran's separation from service, and the only lay evidence suggesting such consists of the Veteran's own statements, which are lacking credibility. Secondary Service Connection The Board has also considered the Veteran's assertion that he has a cervical spine disability that was caused or aggravated by his service-connected lumbar spine disability. Generally, a disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2013). As medical records clearly show a current cervical spine disability, the remaining question is whether this disability is caused or aggravated by the service-connected lumbar spine disability. In June 2011, a VA examiner opined that the Veteran's cervical spine musculoskeletal strain was not caused or aggravated by the service-connected lumbar spine disability as those types of disabilities do not really influence each other. In a February 2013 medical opinion, a VA physician opined that cervical spine aggravation beyond the natural course of the condition by the lumbar spine is less likely than not since there is no evidence of a thoracic spine condition, which is where the cervical and thoracic spine segments meet. The physician further noted that X-rays in 2002 and 2011 both showed mild findings. The independent medical expert who provided an opinion in November 2013 also opined that it is less likely than not that the Veteran's current cervical spine disability is causally related to or aggravated beyond the normal course of the condition by his service-connected lumbar spine disability. He explained that chronic degenerative disease of the cervical spine is not related to or caused by muscle spasms, sprains, or strains. He also noted that the Veteran's degenerative changes are only mild. The Board has afforded the medical opinions indicating that the Veteran's cervical spine disability was not caused or aggravated by his lumbar spine disability high probative value as they were made in consideration of the relevant evidence and include rationales for the conclusions reached. There is no medical evidence in significant conflict with these opinions. To the extent the Veteran is suggesting that his current cervical spine disability is caused or aggravated by his lumbar spine disability, the Board is affording more probative weight to the medical evidence in this case as the medical opinions were provided by trained medical practitioners who took into account the history of the disabilities as well as diagnostic testing results. Given the above, the Board finds that the Veteran's cervical spine disability is not related to his military service or a service-connected disability and the claim must be denied. ORDER Entitlement to service connection for a cervical spine disability is denied. ____________________________________________ Laura H. Eskenazi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs