Citation Nr: 1806223 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 00 09-963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a chronic cervical spine condition. REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney ATTORNEY FOR THE BOARD Michael J. O'Connor, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1989 to May 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A September 2012 Board decision denied entitlement to service connection for a chronic cervical spine disability. Subsequently, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claim (CAVC). Pursuant to a January 2014 Memorandum Decision, the Veteran's appeal was remanded to the Board for further action. In September 2014, the Board remanded the case to the RO to obtain additional medical records, schedule the Veteran for an examination, and to re-adjudicate the claim, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a subsequent May 2017 rating decision, the St. Petersburg RO denied service connection for a chronic cervical spine disability. The Veteran filed a timely appeal. In November 2017, the Board requested expert medical opinion from the Veterans Health Administration (VHA). The VHA opinion, dated December 2017, has been provided to the Veteran and his representative. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDING OF FACT The Veteran has a current chronic cervical spine disability which is related to service. CONCLUSION OF LAW The criteria for service connection for chronic cervical spine disability have been met. 38 U.S.C. §§ 1110, 1133, 5103, 5103A, 5107 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). For certain chronic diseases, such as arthritis, the second and third elements of service connection can be established by showing a continuity of symptomatology since service. 38 U.S.C. § 1101; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.309(a). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-99 (1997). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). In cases where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Chronic Cervical Spine Condition With respect to the merits, the Veteran contends that his current chronic cervical spine disability is related to his in-service lower scapula/back strain. A March 2017 VA examiner reported the Veteran has degenerative disc disease and degenerative joint disease of the cervical spine with cervical myelitis. Therefore, the Veteran has a currently diagnosed lower back disability that constitutes a chronic disease as defined in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a). Turning to the evidence, service treatment records demonstrate that the Veteran injured his low back in January 1991. He was given a diagnosis of low back strain, prescribed an analgesic, and ordered to full duty. See Service Treatment Records dated January 5, 1991. The service treatment records demonstrate that the Veteran injured his low back while lifting a desk in September 1991. In September 5, 1991, the Veteran's treatment records contain a description of the injury as "while lifting a heavy desk" with progressing pain. The findings of the treating physician include "small area of pain and tenderness to the left side scapula; no radiation" with a diagnosis of "back strain." He was prescribed an analgesic and given light duty for seven days. On September 12, 1991, the Veteran returned for a follow-up regarding his injured left upper back, and he was again diagnosed with a back strain. There is no direct evidence of cervical involvement. See Service Treatment Records dated September 5, 1991 and September 12, 1991. On September 18, 1992, the Veteran sought treatment for a muscle spasm and upper back pain. See Service Treatment Records dated September 18, 1992. The treating physician diagnosed the Veteran with muscle spasms "below the left scapula." On September 21, 1992, the Veteran went for a follow-up examination. The Veteran reported pain that is "dulled down" and diagnosed with "resolving" muscle spasms. There is no evidence of cervical involvement. See Service Treatment Records dated September 18, 1992 and September 21, 1992. In a March, 1993 service separation examination, the Veteran's neck and spine was noted as clinically normal, however, the Veteran did claim "recurrent back pain" and commented he "had back spasm in January 1991 due to lifting heavy boxes at work." See Separation Examination, dated March 2, 1993. The examination does not address the September 1992 treatment, nor was there any medical complaints regarding his neck. At that time, the Veteran reported a medical history significant for broken bones and back pain. Otherwise, he denied all other significant medical or surgical history. The Veteran's service and private treatment records document a history of low back pain beginning in-service, however, the records do not note neck pain until 1998. The records do not indicate any treatment or medical complaints regarding neck pain or limitations prior to 1998. In September 1998, the Veteran sought treatment for "pain in back of neck and low back" resulting from a "hydroplaning" car accident. The treating physician noted that the Veteran's range of motion was restricted and that there was pain in the posterior neck. See Private Treatment Record, dated September 23, 1998. In that treatment report, the treating physician notes that the Veteran's injuries were caused by the auto accident, and prescribed an analgesic. The report does not indicate any previous medical complaints regarding the Veteran's neck or cervical spine. In March 2001, the Veteran went for a medical check-up. The Veteran stated that he had a back injury in service and had pain. The treating physician found that he had mild pain and mild spasms, and diagnosed chronic back sprain. He also stated that the MRI and x-ray established degenerative joint disease. See Private Treatment Record, dated March 9, 2001. Neither the Veteran nor treating physician referenced any cervical complaints or findings. In August 2001, the Veteran underwent an x-ray which showed that the cervical spine was within normal limits and that "no definitive disc pathology was noted. Mild congenital cervical spinal stenosis." See Private Treatment Record, dated August 10, 2001. In February 2012, the Veteran underwent treatment for neck pain, including an epidural steroid injection. The Veteran suffered immediate onset of right body burning and weakness. In March 2012, the treating physician noted that the Veteran suffered from "Persistent right upper extremity and body numbness neuropathic pain (dermatome C7 and below) and minimal weakness immediately after C7 T1 interlaminar epidural steroid injection likely iatrogenic traumatic cervical cord injury" See Private Treatment Records, dated July 20, 2012. In January 2013, the Veteran was seen for a neurological follow-up regarding bilateral upper extremities. The treating physician diagnosed the Veteran with cervical transverse myelitis, idiopathic in nature with secondary right sided weakness as well as cervical and lumbar spondylosis. See Private Treatment Records, dated January 10, 2013. VA Examinations The Veteran was afforded a VA Examination in January 2001 in relation to his lower back condition. At that time, the Veteran also reported that "about a year ago, he started having neck pain and neck spasms." Upon examination, the examiner noted that cervical x-rays were "unremarkable" and "showed no gross abnormality." The examiner opined that the in-service injury "may have exacerbated his mechanical low back pain," but did not address the Veteran's neck condition. The examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine. See VA Examination, dated August 25, 2001. In February 2005, the Veteran underwent a VA Examination in relation to his lower back condition. The examiner found that the Veteran had "mild degenerative disease with loss of height of disc space at L5-S1," and that he has "degenerative change in his lumber spine which is consistent with age." The Veteran did not report any pain or other medical issues with his upper back or neck. The Veteran did not report any pain or other medical issues with his neck, but did mention pain that would radiate from his low back to his upper back. See VA Examination, dated February 19, 2005. The Veteran was afforded a VA Examination in July 2009 in relation to his lower back condition. At that time, the Veteran reported low back pain "that is getting worse" and that he suffers from "low back pain, after bending down," occurring 6-7 times a month. The Veteran did not report any pain or other medical issues with his upper back or neck. See VA Examination, dated July 8, 2009. The Veteran underwent another VA Examination in December 2009. The examiner stated that the Veteran's "mild DDD/DJD of his cervical spine is not related to his lumbar spine since many times degenerative changes occur in varying degrees at varying levels and are unrelated. The Veteran's x-rays support mild degenerative changes of his cervical spine which has occurred as a result of natural progression and not related to his military service or other SC conditions." See VA Examination, dated December 22, 2009. The Veteran was also afforded a VA Examination in August 2013 in relation to his neck condition. At that time, the Veteran reported having neck pain since his in-service injury. The examiner opined that the Veteran's current cervical condition was not a continuation of the in-service low back injury. See VA Examination, dated August 7, 2013. Specifically, the examiner opined that there is no medical evidence or literature which connects the Veteran's current neck condition, including myelitis, with an upper back muscle strain. He also opined that the Veteran's current neck condition was less likely than not caused by or incurred during his period of service, to include the noted back strain. The Veteran was afforded another VA Examination in March 2017 in relation to his chronic cervical condition. At that time, the Veteran reported having neck pain since his in-service injury. The examiner stated that the Veteran's service treatment records showed no treatment for the cervical spine. See VA Examination, dated March 25, 2017. Upon review, the examiner diagnosed the Veteran with degenerative disc disease, degenerative joint disease and myelitis of the cervical spine. The 2017 examiner opined that the Veteran's current cervical condition, including degenerative disc disease, degenerative joint disease, and myelitis, was not a continuation of the in-service back injury. See VA Examination, dated March 25, 2017. Specifically, the examiner opined that the Veteran's current cervical condition was less likely than not caused by or incurred during his period of service, to include the noted back injury. The examiner stated that the Veteran's condition is likely due "to expected aging process as commonly seen at this veteran's age group (35+) and that were likely accelerated and/or aggravated by mechanical stress as a postal clerk at the Main Plant 15 + years since leaving military service." In addition, the 2017 examiner opined that the in-service injury was muscular in nature, and the Veteran's current condition is skeletal in nature, due to degenerative disc and joint disease. The examiner also noted that the Veteran sought treatment for a post-service neck injury, including cervical injections which likely caused cervical myelitis, and provided a sound basis for her findings, including references to medical literature regarding the onset of cervical myelitis. Due to the discrepancies in the medical evidence of record, the Board sought out an expert opinion. The VHA expert opined that "it is more likely than not (greater than 50% probability) that his in-service injury was related to his present problem. He has a congenital spinal stenosis of the cervical spine that predisposes him to this problem. ...It is not unusual for a patient with a low cervical disc problem to complain of shoulder and scapula pain even without neck pain...He has had recurrent episodes of pain in his shoulder and neck dating back to the incident (in service)." See VHA Opinion, dated December 1, 2017. After careful review, the Board finds that the weight of the evidence is in support of the claim for service connection for a cervical spine disability. In so finding, the Board notes that the most probative evidence of record are the Veteran's treatment records and the VHA expert opinion. As discussed above, the VHA expert's opinion addressed every pertinent factual aspect of the claim, including the Veteran's in-service muscle strain and follow-up treatment, as well as the Veteran's post-service medical records. The opinion also considered the Veteran's lay statements regarding his in-service injury and symptomatology. It is well-established that, when evaluating medical evidence, the Board considers evidence to be more probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To that end, the VHA expert presented detailed findings supported by the evidence, and drew conclusions based on specific applications of the Veteran's symptoms to that history. In sum, the evidence deemed most probative by the Board establishes that the Veteran's current cervical spine condition was incurred during service. In so finding, the Board determines that the most probative evidence demonstrates that his current neck symptoms are related to the September 1991 muscle strain. As such, service connection is warranted on a direct basis. See 38 C.F.R. § 3.303(b), 3.307, 3.309; Walker, 708 F.3d 1331 (Fed. Cir. 2013). ORDER Entitlement to service connection for chronic cervical spine condition is granted. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs