Citation Nr: 1501577	
Decision Date: 01/13/15    Archive Date: 01/20/15

DOCKET NO.  12-03 386	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for a cervical spine disability.

2. Entitlement to service connection for a bilateral hearing loss disability.

3. Entitlement to service connection for a lung disability.

4. Entitlement to service connection for neuropathy of the right upper extremity, claimed as secondary to a service-connected disease or injury.

5. Entitlement to service connection for neuropathy of the left upper extremity, claimed as secondary to a service-connected disease or injury.

6. Entitlement to service connection for migraine headaches, to include claimed as secondary to a service-connected disease or injury.

7. Entitlement to service connection for residuals of left tibia fracture.

8. Entitlement to service connection for a right leg disability.


REPRESENTATION

Appellant represented by:	J. Michael Woods, Attorney at Law


ATTORNEY FOR THE BOARD

G. Jackson, Counsel


INTRODUCTION

The Veteran had active service from March 2003 to August 2004 with additional service in the Army National Guard prior and subsequent to the dates of active service.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the RO.

The Board notes that, in addition to the paper claims file, there is an electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal herein decided.

The issues of entitlement to service connection for neuropathy of the right and left upper extremity, migraine headaches, residuals of left tibia fracture and a right leg disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).




FINDINGS OF FACT

1. The Veteran's cervical spine disability had onset during service.

2. The Veteran does not allege specific error of fact or law regarding the claims for entitlement to service connection for a bilateral hearing loss disability and a lung disability.


CONCLUSION OF LAW

1. Cervical spine degenerative disc disease and degenerative joint disease, status post C5-6 discectomy and fusion was incurred in service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014).

2. The criteria for dismissal of the appeal of the claims for entitlement to service connection for a bilateral hearing loss disability and a lung disability have been met. 38 U.S.C.A. § 7105 (d)(5) (West 2014).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). In light of the favorable decision on the claim on appeal herein decided, the Board finds that any VA deficiency that may exist in complying with the VCAA is harmless error.





Laws and Regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 

Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. 

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.

That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  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), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As noted, arthritis is a chronic disease.  38 U.S.C.A. § 1101.  Therefore, section 3.303(b) is potentially applicable.

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

Analysis

As an initial matter, the Board notes that the Veteran received the Purple Heart and the Combat Action Badge for his service in Iraq.  As such, the Board finds that the Veteran engaged in combat with the enemy.  Accordingly, his lay statements must be considered.  However, 38 U.S.C.A. § 1154(b) does not create a statutory presumption that a combat Veteran's alleged disease or injury is service connected; rather, it aids the combat Veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service.  Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). 

The Veteran asserts that his current cervical spine disability onset during his period of active service as a result of having to wear and carry the heavy gear he was assigned. An August 2003 service treatment record documents the Veteran's complaint of neck pain ongoing for 1 day. On a scale of 1 to 10, he rated the pain a level 6. Medication was not helping his neck pain. A medical history of "HNP C5" was documented. Physical examination showed left side of dorsal neck was tender to palpation.  The assessment was "musculoskeletal shoulder."

Additional August 2003 service treatment record documents the Veteran's complaint of neck pain with migraine. It was noted that the Veteran had "history with complications of C5." Examination of his neck showed he was tender to palpation in the bilateral paraspinous muscles. The assessment was neck strain.

A March 2004 service treatment record reflects the Veteran's complaint of difficulty turning his neck. He did not know if he strained his neck. He could not find a comfortable way to sleep. Physical examination showed decreased range of motion. The assessment was cervical strain. March 2004 service line of duty investigation documents that the Veteran's neck strain injury was incurred in the line of duty

A July 2004 service treatment report records the Veteran's complaint of pain in his neck. The Veteran indicated that he had the neck pain for years; however, service in Iraq had exacerbated the pain. He experienced tightness in his neck that was causing migraines. He reported that he previously received treatment from a chiropractor and underwent acupuncture both of which had provided some relief. It was documented that MRI performed 4 years ago at his family doctor showed C5 degenerative discs and potentially C6-7 involvement. However, the examiner indicated those records had not been available for review. On examination he had decreased range of motion of his neck. The x-ray findings showed degenerative disc with narrowing of anterior disc at C4-C5 and C5-C6 with anterior spurs noted. Findings also showed narrowing of neural foramina laterally at C5-C6 due to degenerative changes at joint of Luschka noted bilaterally at C5-C6.

September 2004 MRI findings showed C5-6 degenerative spondylosis with mild canal stenosis and bilateral foraminal narrowing. Also demonstrated was minimal early spondylitic changes at C4-5.

A March 2006 treatment record documents the Veteran's complaint of chronic neck pain that had increased over the past week. The examiner documented "soldier has herniated disc C5-C6" and "soldier has LOD documenting injury in Iraq." The Veteran reported pain radiated down his right arm. Physical examination demonstrated that the Veteran had spasm on the right side of his neck with radiation down right arm. He had limited side bend of the neck to the right due to the pain; however, he had good flexion and extension of the neck. He had reproducible pain with pressure to the top of his head. The assessment was herniated disc C5-C6, chronic neck pain.

June 2006 MRI findings showed moderate central canal stenosis and right paramedical canal narrowing, C5-6 secondary to posterior bone spurring and mild left-sided bony foraminal stenosis, C4-5 and C5-6. April 2007 MRI findings (subsequent to motor vehicle accident in February 2007) showed, in pertinent part, bilateral disc bulging and uncinated spurring at the C3-C4 level and right paracentral disc herniation and uncinated spurring with mild AP and moderate right foraminal encroachment at C5-C6. April 2008 MRI findings confirmed that there were degenerative changes at C5/C6.

The November 2008 report of VA examination documents the Veteran's report of onset of cervical spine disability in service. On examination, the diagnosis was cervical spine post discectomy and fusion without radiculopathy.

In the March 2009 report of VA examination, the examiner documents the Veteran's history of current medical complaint, including a purported July 2002 MRI report showing C5-6 HNP. The examiner opined that there was no objective evidence to support a finding that there was a worsening beyond natural progression of the Veteran's Cervical C5-6 discectomy and fusion due to military service. The examiner explained that the pre-existing cervical degenerative changes followed a slow, continuous pattern of degeneration as expected without apparent acceleration during military service. The examiner also concluded that the steady degeneration appears not to have been accelerated by the motor vehicle accident (in February 2007).

The May 2010 report of the Medical Evaluation Board documents that the Veteran did not have any specific neck problems prior to his mobilization and deployment in 2003-2004. He complained of problems while deployed with neck and shoulder pain and strain related to his duties, physical stress and wearing of Kevlar and IBA on a constant basis. On his return in July 2004, he was noted to have some degenerative changes on x-ray at C4-5 and C5-6. Conservative treatment of the cervical spine disability was ineffective and he was eventually advised to have surgery which he underwent. Ultimately, the Medical Evaluation Board concluded that because of his cervical spine disability he could not perform his MOS or military duties and the Veteran failed retention standards.

The July 2010 report of VA examination documents the Veteran's complaint of neck pain "prior to going overseas" but he noted an increase in pain during deployment to Iraq, while wearing combat gear and Kevlar. He underwent cervical fusion but intermittent pain persisted. On examination the cervical spine disability was confirmed. No opinion as to etiology was rendered.

In a statement received in January 2012, the Veteran's treating chiropractor concluded that without a doubt the Veteran's spinal condition was worsened by his military service. The chiropractor explained that the heavy lifting, walking long distances in the sand, undue stress and carry of heavy back packs have increased the degenerative condition and forced the Veteran to seek surgical intervention.

The Veteran contends that he is entitled to service connection for a cervical spine disability, as he believes that it onset during his period of active service.  

Every Veteran is presumed to have been in sound condition at entry into service, except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).

Determination of the existence of a preexisting condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion, see Miller v. West, 11 Vet. App. 345, 348 (1998), or a later medical opinion based upon statements made by the Veteran about the pre-service history of the condition. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000). The burden is on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004).

Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened. Beverly v. Brown, 9 Vet. App. 402, 405 (1996) (citing Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)).

In this case, the presumption of soundness is applicable as there is no evidence that a cervical spine disability was noted at the Veteran's entry onto active service.

While the Board is aware that the August 2003 and July 2004 service treatment records seem to indicate that the Veteran's cervical spine disability preexisted his period of active service, there are no records to substantiate such a finding. To that end, in the July 2004 service treatment record, the examiner, while documenting MRI performed 4 years ago at his family doctor showed C5 degenerative discs and potentially C6-7 involvement, explicitly noted such records were unavailable. Therefore, the Board cannot find that there is clear and unmistakable evidence that a cervical spine disability preexisted service.  The fact that he had cervical pain prior to service does not establish that he had cervical disc disease prior to service.  Even if we accept that there was a history of a C5 disc issue, the date of origin is not established in the document and in-service records establish that there was involvement of more than just C5. 

The Veteran's service treatment records from his period of active service reflect that he was seen for cervical pain and strain in service. X-ray findings showed degenerative changes at C4-C5 and C5-C6 with spurring (July 2004).
 
Post-service treatment records reflect diagnosis and assessment of herniated disc C5-C6 with chronic neck pain and moderate central canal stenosis and right paramedical canal narrowing, C5-6 secondary to posterior bone spurring and mild left-sided bony foraminal stenosis, C4-5 and C5-6, and cervical spine post discectomy and fusion without radiculopathy. 

The Veteran was afforded a VA examination in November 2008, upon which the examiner diagnosed cervical spine post discectomy and fusion without radiculopathy. In the March 2009 VA examination report the examiner opined that there was no objective evidence to support a finding that there was a worsening beyond natural progression of the Veteran's Cervical C5-6 discectomy and fusion due to military service, explaining that the pre-existing cervical degenerative changes followed a slow, continuous pattern of degeneration as expected without apparent acceleration during military service. 

In order to rebut the presumption of soundness, there must be clear and unmistakable evidence that the disorder preexisted service. As noted, there is no such evidence of record. Even if the Board were to find that a cervical spine disability preexisted the Veteran's period of active service, to rebut the presumption of soundness there must be clear and unmistakable evidence that the disorder did not increase in severity. Here, during active service there was evidence that he had complaints of neck pain and strain in the performance of his duties in Iraq. X-ray findings showed degenerative changes at C4-C5 and C5-C6 with spurring. Nothing in the service records or post service records establishes that there was no increase in severity or that any change was due to natural progress, rather, the evidence is inadequate. 

Further, the March 2009 VA examination opinion does not clearly and unmistakably establish that the disability did not increase beyond the natural progression during service. Rather, the examiner provided insufficient rationale for the conclusion that the disability followed a slow, continuous pattern of degeneration as expected without apparent acceleration during military service. In addition, the Board notes that the statement from the Veteran's treating chiropractor indicates a causal relationship between the Veteran's current cervical spine disability and his period of active service.

In reaching this determination, we note that the provisions of 38 U.S.C.A. § 1154(b) are applicable.  His statements regarding the use of equipment and cervical pain are satisfactory evidence and consistent with the circumstances of service.  His report of aggravation is accepted and not rebutted by clear and convincing evidence.  Lastly, contained in the file is a service record addressing the cervical disability.  There was a notation of EPTS No and LOD Yes.

Under the circumstances, since the Board cannot establish by clear and unmistakable evidence that cervical spine disability preexisted service and was not aggravated therein, service connection is warranted. 

Dismissal

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(5). In the April 2009 rating decision, the RO, granted service connection for posttraumatic stress disorder (PTSD) and denied claims for entitlement to service connection for a cervical spine disability, a bilateral hearing loss disability, a lung disability, left tibia fracture, a right leg disability, neuropathy of the right upper extremity, neuropathy of the left upper extremity and migraine headaches. In his February 2010 Notice of Disagreement, the Veteran explicitly disagreed with the denial of his claims for entitlement to service connection for a cervical spine disability, left tibia fracture, a right leg disability, neuropathy of the right upper extremity, neuropathy of the left upper extremity and migraine headaches only. Argument associated with his January 2012 Substantive Appeal (VA Form 9) pertains only to those issues and neither the Veteran nor his attorney has submitted any indication or argument of disagreement with the denial of the claims for a bilateral hearing loss disability and a lung disability. Hence, there remains no allegation of an error of fact or law referable to the claims for entitlement to service connection for a bilateral hearing loss disability and a lung disability at this time. Accordingly, in this regard only, the appeal is dismissed. 

Since there has been no NOD or Substantive Appeal in regard to these issues, the appellant has not been misled and is not prejudiced by the dismissal.


ORDER

Entitlement to service connection for a cervical spine disability is granted.

The appeal regarding the claims of entitlement to service connection for a bilateral hearing loss disability and a lung disability is dismissed.  


REMAND

As for the Veteran's claims for entitlement to service connection for neuropathy of the right and left upper extremities, in light of the Board decision herein granting service connection for the cervical spine disability, the Board finds that further examination is warranted to determine if the Veteran has any neurological disorder caused or aggravated by his now service-connected cervical spine disability.

Regarding his claim for entitlement to service connection for migraine headaches, the Board notes that the record clearly indicates that his migraine headaches preexisted his period of active service. Here, the Veteran also asserts that his migraine headaches were either caused or aggravated by his cervical spine disability and such is documented in service treatment records of his period of active service. In this case, the Board finds examination is necessary to determine if his migraine headaches were aggravated during his period of service or were otherwise caused or aggravated by his now service-connected cervical spine disability. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

Finally, with regard to the Veteran's claim for entitlement to service connection for residuals of a left tibia fracture and a right leg disability, the Board notes that, in February 2010, the Veteran submitted correspondence expressing disagreement with the April 2009 rating decision that denied entitlement to service connection for these claimed disorders. To date, however, the RO has not issued a statement of the case (SOC) regarding these particular issues in response to the Veteran's notice of disagreement (NOD). Therefore, remand is necessary to cure this defect. See 38 C.F.R. §§ 19.9, 20.200, 20.201; see also Manlincon v. West, 12 Vet. App. 238 (1999). The RO should return the claims file to the Board only if the Veteran perfects his appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997).

Accordingly, the case is REMANDED for the following action:

1. The RO should issue a SOC addressing the issues of entitlement to service connection for residuals of a left tibia fracture and a right leg disability. The Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. 

2. Schedule the Veteran for a VA examination to evaluate his complaints of neuropathy of the right and left upper extremity. The claims file should be made available to the examiner for review. All indicated tests and studies should be performed and clinical findings should be reported in detail. After a thorough review of the evidence, the examiner should provide an opinion with supporting rationale as to the following:

(a) Whether it is at least as likely as not (50 percent probability or better) that any neurological disorder of the right or left upper extremity had its clinical onset during service or was due to an event or incident of the Veteran's period of active service.

(b) Whether it is at least as likely as not that any neurological disorder of the right or left upper extremity was caused by the service-connected cervical spine disability.

(c) Whether it is at least as likely as not that any neurological disorder of the right or left upper extremity was aggravated by (permanently worsened) the service-connected cervical spine disability.  

If aggravation of the neurological disorder of the right or left upper extremity by service-connected disability is shown, the examiner should objectively quantify the degree of aggravation beyond the level of impairment had no aggravation occurred.  

3. Schedule the Veteran for a VA examination to evaluate his complaints of migraine headaches. The claims file should be made available to the examiner for review. All indicated tests and studies should be performed and clinical findings should be reported in detail. After a thorough review of the evidence, the examiner should provide an opinion with supporting rationale as to the following:

(a) Whether it is at least as likely as not (50 percent probability or better) that migraine headaches were aggravated (worsened beyond the natural progress of the disease) during the Veteran's period of active service.

(b) Whether it is at least as likely as not that any migraine headaches was caused by the service-connected cervical spine disability.

(c) Whether it is at least as likely as not that any migraine headaches was aggravated by (permanently worsened) the service-connected cervical spine disability.  

If aggravation of the migraine headaches by service-connected disability is shown, the examiner should objectively quantify the degree of aggravation beyond the level of impairment had no aggravation occurred.  

4. After completing all indicated development, the AOJ should readjudicate the claims for entitlement to service connection for neuropathy of the right upper extremity, neuropathy of the left upper extremity, and migraine headaches in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a fully responsive supplemental statement of the case and afforded a reasonable opportunity for response.

Thereafter, if indicated, this case should be returned to the Board for the purpose of appellate disposition. 

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs