Citation Nr: 1537297 Decision Date: 09/01/15 Archive Date: 09/10/15 DOCKET NO. 11-05 341A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a neck disorder. 2. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from September 1980 to September 1982 and from March 1987 to April 2005. This matter comes before the Board of Veterans' Appeals (VA) on appeal from a rating decision entered in November 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. FINDING OF FACT Chronic disability involving degenerative disc disease of the cervical spine and anterior wedge fractures at two levels of the thoracic spine originated in service. CONCLUSIONS OF LAW 1. Degenerative joint disease of the cervical spine was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. Anterior fractures at two levels of the thoracic spine were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS As the disposition herein reached is favorable to the Veteran-appellant, the need to discuss the VA's efforts to comply with its duties to notify and assist the Veteran per 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2015), is obviated. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). The requirement that there be a current disability is satisfied when the disability is shown at the time during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, the Veteran served on active duty for a period of 20 years and notwithstanding the fact that his inservice duties were largely administrative, he earned the Parachutist Badge while in active service and, thus, was subject to trauma or the possibility thereof. Service treatment records are incomplete through no fault of the Veteran whatsoever, but those which are available document as of January 1998 radiographic evidence of old-appearing, minimal compression deformities of the thoracic spine. Also indicated are a clinical assessment of neck strain in September 1998 following an injury of the Veteran while doing sit-ups, as well as his complaints of neck pain in February 2003 with a clinical showing of muscle spasm of neck muscles and further complaints of left neck pain on examination in February 2004. Lastly, service treatment records include a report of medical history compiled at the time of a service exit examination in January 2005, when the Veteran noted the presence of upper back and base of neck pain and there was medical acknowledgment of his chronic neck and mid-back pain. There is no question that the compression deformities of the thoracic spine identified in service and the wedge fractures at two levels of the thoracic spine shown on VA examination in February 2010 are one in the same. The failure of the VA examiner to even reference the inservice radiographic finding fully negates his adverse nexus opinion and, given the length of the Veteran's service and the complaints of mid-back pain, the Board finds that the record supports entitlement to service connection for a thoracic spine disorder, now diagnosed as wedge fractures of the thoracic spine at two levels. The same reasoning is for application with respect to the claim advanced for a neck or cervical spine disorder. Unlike the thoracic spine, there is no radiographic evidence in service of pathology involving the cervical spine, but there is inservice documentation over a period of years from 1998 to 2005 as to the initiation and advancement of a disease process involving the Veteran's neck. During the noted time frame, complaints of neck pain are documented and clinical data identify a history of a neck injury from sit-ups in 1998 with entry of a clinical assessment of neck strain was entered; also shown are the clinical observation of muscle spasm and acknowledgement by a medical professional of the Veteran's chronic neck pain. While it is true, as noted by the VA examiner in 2011 that a mild arthritic process of the cervical spine was not shown for a period of years (six per the VA examiner, but actually five) after the Veteran's service discharge, the VA examiner attributed the Veteran's arthritis to postservice events. Nonetheless, the record is silent as to any postservice event that may have led to the onset of the Veteran's neck arthritis and on that basis the VA's examiner's opinion is found to be without an adequate basis in fact and unworthy of probative weight. The frequency and duration of his inservice complaints and findings of neck disability were not fully, if at all, addressed and notwithstanding the absence of documented complaints or findings during the five year period after service, the facts of this case do not permit the Board to dissociate the Veteran's inservice complaints and findings of neck disability from the degenerative process of his cervical spine shown just five years postservice. So, with resolution of reasonable doubt in the Veteran's favor, service connection for degenerative disc disease of the cervical spine is warranted. The appeal is granted. (CONTINUED ON NEXT PAGE) ORDER Service connection for degenerative disc disease of the cervical spine is granted. Service connection for residuals of wedge fractures of the thoracic spine at two levels is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs