Citation Nr: 1624071 Decision Date: 06/15/16 Archive Date: 06/29/16 DOCKET NO. 02-21 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Jeany Mark, Private Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active military service from February 1975 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which denied service connection for cervical spine disability. The case was subsequently transferred to the RO in Cleveland, Ohio. The Veteran testified at a hearing held before a now-retired Veterans Law Judge (VLJ) in April 2003 and a transcript of the hearing is associated with the claims file. While the Veteran was afforded the opportunity for a new hearing before a different VLJ who would ultimately decide the case in March 2006 correspondence, the Veteran declined and asked that the claim be considered based on the evidence of record. By a September 2003 decision, the Board granted the Veteran's request to reopen the claim of entitlement to service connection (service connection had previously been denied in an unappealed rating decision in November 1992). The Board then remanded the case for further development. Following the development, the Board denied the claim in a decision dated in November 2004. The Veteran then appealed the November 2004 Board decision to the United States Court of Appeals for Veterans Claims (Court). By an order dated in August 2005, the Court remanded the issue in response to a joint motion for remand (JMR), which the Court incorporated by reference. The JMR concluded that a remand was necessary because, in its November 2004 decision, the Board had failed to discuss the "positive evidence" contained in an October 2003 VA medical report from Dr. McQuarrie. The Board, again, denied the claim in a decision dated in March 2006. At the heart of the Veteran's claim was his averment that he suffered an injury to his neck in a vehicle accident in service, an accident that was not documented in his service treatment records (STRs); his separation examination showed no related complaint or abnormality. In its March 2006 decision, the Board noted that the Veteran was competent to provide lay testimony that the accident he described happened, and that his neck hurt afterwards. The Board relied on the medical opinion of a March 2004 VA examiner who noted that he could find nothing in the Veteran's STRs that was responsible for the Veteran's current spine disability, and that the Veteran had had multiple injuries to the neck over the 20 years preceding the 2004 examination (all of which occurred after he left military service). The examiner concluded that it was more likely than not that the Veteran's arthritis in the cervical spine was a naturally occurring phenomenon. The Veteran appealed again to the Court. By an order dated in August 2007, the Court again remanded the issue in response to a JMR, which the Court incorporated by reference. The JMR concluded that a remand was necessary because, in its March 2006 decision, the Board had relied on the March 2004 VA medical examination and opinion that was predicated on the absence of any evidence of an in-service accident or treatment of neck complaints, and because the Board did not consider the Veteran's lay testimony as it related to the continuity of his symptomatology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Because the March 2004 VA examiner based his opinion on the absence of evidence of such an accident recorded in the STRs, rather than basing his opinion on the in-service injury described by the Veteran, the Board remanded again in January 2008 for another examination and medical opinion. On remand, the Veteran was afforded yet another VA examination, conducted in January 2009. In response to the Board's request for a nexus opinion, the examiner stated that he would have to resort to speculation to determine that the Veteran's cervical spine condition was related to the accident in service, or to any of the aforementioned accidents in 1988, 1997, or 2001. The Board, again, denied the Veteran's claim in a decision dated in December 2009 and, again, the Veteran appealed to the Court. In July 2010, the Court granted a JMR, vacating the Board's December 2009 decision, and remanded the matter to the Board for re-adjudication. The basis for the JMR was that the January 2009 VA examination was inadequate because the examiner had not provided a complete rationale for his conclusion that he would have to resort to speculation to conclude that the Veteran's cervical spine condition was related to the accident in service, or to any of several post-service accidents. Specifically, the examiner's conclusion did not comport with Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Most recently, in January 2011, the Board remanded the case again for another examination and medical opinion and an addendum medical opinion was obtained in February 2011. This appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and the Virtual VA claims processing systems. FINDING OF FACT Resolving all doubt in his favor, degenerative disc disease of the lumbar cervical spine is related to the Veteran's military service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for degenerative disc disease of the cervical spine have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for degenerative disc disease of the cervical spine herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Calusa v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he injured his cervical spine during his military service in 1976 when an armored personnel carrier (APC) in which he was riding hit a tree. He states that he sustained a whiplash injury but avers that the residuals of that injury did not become apparent until after service. He acknowledges that his STRs are negative for any complaints or clinical findings of a cervical spine disorder and testified during the April 2003 Board hearing that the accident was never reported to authorities because the APC was not damaged from hitting the tree. The earliest post-service evidence of cervical spine disability is dated in December 1988, when the Veteran sustained a whiplash injury in an automobile accident. He was taken to Akron City Hospital where x-rays were negative for a fracture, destructive change, or subluxation involving bones of the cervical spine. The x-rays did, however, reveal mild degenerative changes involving C4 and C5 with relative narrowing of the interspace and associated impingement upon the intervertebral foramina. Records from the Sports Medicine Center and from Philip Wilcox, M.D., dated from July 1990 to July 1992, confirmed the presence of degenerative joint disease (arthritis) at that level. They also show that in June 1990 the Veteran injured his neck again when a tire fell on him. However, a July 1990 treatment record notes that the Veteran's neck pain first started in the early 1970s after a whiplash injury in the Army. During a VA orthopedic examination in July 1992, the examiner noted that the Veteran had advanced degenerative arthritis at C4-C5 and very minimal arthritis at C6. He stated that because the remainder of the cervical spine was relatively normal, the arthritis at C4-C5 could be the result of old trauma. The Veteran re-injured his neck when he was involved in two more motor vehicle accidents, in January 1997 and January 2001. The primary diagnosis, however, continued to be arthritis of the cervical spine. A magnetic resonance imaging (MRI) scan, performed by VA in February 2001, also showed degenerative disc disease at multiple levels, including C4-C5, C5-C6, and C6-C7. A November 2003 MRI performed by VA revealed a herniated nucleus pulposus at C4-C5. On VA examination in October 2003, Dr. McQuarrie wrote that the Veteran's cervical spine pain did not appear until three years following the Veteran's second whiplash injury in December 1988. Significantly, Dr. McQuarrie wrote that, by the time of the December 1988 neck injury, the Veteran "already had degenerative arthritis visible on C-spine x-rays--suggesting that the first whiplash event (sustained during military maneuvers) was not as trivial as the patient thought at the time." However, Dr. McQuarrie did not provide an explicit etiology opinion as to the Veteran's cervical spine disability. On VA examination in March 2004, the examiner noted that there was no documentation of any spine injury or spine treatment that could have been responsible for the Veteran's current spine injury. The examiner noted the Veteran's multiple injuries to the neck over the preceding 20 years, and noted that he could find nothing in the Veteran's STRs that was responsible for the Veteran's current spine disability. The examiner concluded that it is more likely than not that the Veteran's arthritis in the cervical spine was a naturally occurring phenomenon. The Veteran submitted an undated letter from Aliya Ali, M.D., which was received into the record in January 2006. In this letter, Dr. Ali said that she had reviewed the available medical records, and interviewed the Veteran. Dr. Ali recounted the Veteran's claimed in-service accident, and his subsequent motor vehicle accident in 1988 that resulted in the taking of cervical spine x-rays that in turn revealed what Dr. Ali described as "a significant amount of degenerative arthritis." Dr. Ali concluded that it was at least as likely as not that the premature arthritis seen on the Veteran's 1988 x-rays was due to a previous injury. While there was no documentation of the accident in service, Dr. Ali indicated that the recurrent persistent headaches and popping in the Veteran's neck, which the Veteran reported having experienced subsequent to the in-service accident, could be consistent with cervical spine trauma. As noted, the Board remanded in January 2008 to afford the Veteran another VA spine examination. That examination was performed in January 2009 by a VA physician's assistant, and was acknowledged by a VA internist. The January 2009 examiner recorded the Veteran's statements associated with his claimed 1976 in-service motor vehicle accident. The examiner also noted that a September 2001 private medical treatment note which stated that the Veteran's neck pain began in 1988, and that an April 2002 note stated that the Veteran's pain had begun 10 years earlier, or in 1992. The examiner noted that there were no records prior to 1988 reporting neck pain and that, at the time of the 1988 accident, radiographic evidence reported arthritic and degenerative changes in the Veteran's cervical spine. The examiner also noted a 1997 neck injury from a falling tire, and another motor vehicle accident in 2001 that also involved a neck injury. After reporting the results of his examination, the examiner diagnosed degenerative disc disease. In response to the Board's request for a nexus opinion, the examiner stated that he would have to resort to speculation to determine that the Veteran's cervical spine condition was related to the accident in service, or to any of the aforementioned accidents in 1988, 1997, or 2001. In response to the foregoing examination report, the Veteran submitted, through counsel, another opinion letter from Dr. Ali, which was dated in April 2009. Dr. Ali recalled her earlier letter, and summarized the January 2009 VA examiner's report, asserting that that report confirmed the Veteran's claimed injury occurred in 1976 while the Veteran was riding in a vehicle that struck a tree. Dr. Ali also noted that the Veteran suffered additional injuries to his neck in 1988, 1997, 2001, and 2003. She noted that the 1988 injury resulted in the Veteran's having x-rays that revealed what she called "a significant amount of degenerative changes." Even if the degenerative changes were to be categorized as "mild," Dr. Ali continued, in a 39-year-old (the Veteran's age at that time) there should "ideally" be no degeneration. She therefore concluded that an even mild degenerative change is a significant finding. Because all of the Veteran's other reported injuries occurred after 1988, and because it is also "unusual" to have degenerative changes on x-ray at the age of 39 without some antecedent injury or repetitive trauma, she concluded that it was her medical opinion that the Veteran's accident in the military more likely than not resulted in "acceleration" of degenerative arthritis and is evident in the premature arthritis seen on his 1988 cervical x-rays as well as his now debilitating cervical arthritis. As noted, the Board remanded the claim again in January 2011 to afford the Veteran another VA spine examination. However, instead of a new spine examination, an addendum opinion was obtained in February 2011. The examiner reviewed the record and noted that there was no evidence of a cervical spine injury in service. The examiner wrote that it was "not until 12 years later, after another several accidents, [the Veteran] now has degenerative disk disease in his neck. Consequently, his current symptomatology is less likely related to his service-connected problems and more likely a natural age progression." Upon review of the evidence, the Board finds that the evidence of record is in relative equipoise and, affording the Veteran the benefit of the doubt, service connection for a cervical spine disability is warranted. As an initial matter, the Board finds that the Veteran has current a current diagnosis of degenerative disc disease of the cervical spine. Furthermore, the Board has found on several occasions that the Veteran is competent to provide lay testimony that the accident he described happened, and that he hurt his neck during service. The only matter still in question is whether there is a medical link between the Veteran's current cervical spine disability and his in-service neck injury. While the March 2004 VA examiner opined that the Veteran's cervical spine problems were not related to his military service, this opinion was based solely on the lack of confirmation of the Veteran's cervical spine injury in the STRs. As noted in the August 2007 JMR, such opinion is inadequate as it was predicated on the absence of any evidence of an in-service accident or treatment of neck complaints and did not consider the Veteran's lay testimony as it related to the continuity of his symptomatology. See Jandreau and Buchanan. As above, during the April 2003 Board hearing, the Veteran testified that he did not report his in-service neck injury and only realized the effect of this injury six months following his discharge from service. The February 2011 VA opinion also appears to be based on the lack of confirmation of the Veteran's cervical spine injury in the STRs. Furthermore, the February 2011 opinion appears to be based on factual inaccuracy, noting that there were "several accidents" in the 12 years between the Veteran's discharge from service and the first indication of cervical spine problems when, in fact, the earliest post-service neck injury was in December 1988, less than 12 years after the Veteran's discharge from military service. Finally, the February 2011 VA opinion appears to contradict itself by first noting that the Veteran's cervical spine disorder is related to his several post-service neck accidents but then noting that the cervical spine disorder is "likely a natural age progression." In contrast to the negative opinions of record, Dr. Ali reviewed all pertinent records and, in January 2006 and April 2009 letters, related the Veteran's cervical spine disorder to the Veteran's military service, and supported such opinions with findings from the Veteran's medical history. Dr. Ali further supported her opinions by discussing the inconsistencies in the negative VA opinions. Furthermore, while the October 2003 VA examination from Dr. McQuarrie does not explicitly offer an etiology opinion as to the Veteran's cervical spine disability, it certainly suggests such an etiology. Accordingly, the Board resolves all doubt in favor of the Veteran and finds that degenerative disc disease of the cervical spine is related to his military service. Therefore, service connection for such disorder is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303; Gilbert, supra. ORDER Service connection for degenerative disc disease of the cervical spine is granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs