Citation Nr: 20052991 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 17-04 987A DATE: August 10, 2020 ORDER Entitlement to service connection for cervical spondylosis is granted. FINDING OF FACT The Veteran’s cervical spondylosis is at least as likely as not related to a superimposed injury during his military service. CONCLUSION OF LAW The criteria for service connection for a neck disability, diagnosed as cervical spondylosis, have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1991 to January 1992, June 2005 to May 2006, and from July 2006 to September 2008, with additional periods of Reserve service and service in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a June 2020 videoconference hearing. A transcript of that hearing is associated with the claims file. Entitlement to service connection for cervical spondylosis Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Initially, the Board notes that congenital or developmental defects are not considered disabilities for VA compensation purposes. 38 C.F.R. § 3.303(c). The term “defect” is a structural or inherent abnormality or condition which is more or less stationary in nature. VAOPGCPREC 82-90. However, when there is a superimposed disease or injury in service, service connection may be granted for any disability resulting from the superimposed disease or injury. Id.; Monroe v. Brown, 4 Vet. App. 513, 515 (1993). The Veteran has a current diagnosis of a congenital fusion at C6-C7 and degenerative disc disease of the cervical spine, or cervical spondylosis, as indicated on a January 2013 magnetic resonance imaging report. As a congenital defect, service connection for the Veteran’s cervical spinal fusion is barred as a matter of law. 38 C.F.R. § 3.303(c). However, the Veteran claims service connection for a neck disability superimposed on his congenital neck disability that he claims resulted from an in-service injury. The Veteran submitted statements and testimony regarding an “aircraft incident” he experienced in 1991 during flight training while in service. The Veteran noted that the landing gear failed and the crew performed an emergency shutdown which resulted in a “harder than usual landing.” The Veteran testified that he has had neck pain from that time. The Board finds the Veteran’s reports of an in-service neck injury are both competent and credible. Indeed, the Veteran’s service personnel records reflect that he completed an Initial Entry Rotary Wing Aviator Course and served with the aviation regiment in 1991. Further, his service treatment records reflect complaints of neck pain in 2007. At that time, the Veteran reported that he previously saw a German orthopedist who diagnosed him with spinal stenosis. Concerning the presence of a nexus, VA obtained a medical opinion concerning the etiology of the Veteran’s neck disability in May 2013. The examiner opined that it was less likely than not that the Veteran’s preexisting cervical spondylosis/ cervicalgia was permanently aggravated by his active service. The rationale was that the Veteran has a congenital fusion at C6-C7 of the cervical spine. This is a developmental condition which was not caused by the service. The Veteran reported the onset of his neck pain in 1991 while he was not on active duty. As a result of the congenital fusion of the cervical spine, the Veteran developed cervical spondylosis with degenerative changes around C6-C7 which is likely the result of normal aging. The Board finds that the May 2013 VA examination is inadequate to adjudicate the claim. Notably, while the examiner indicated the onset of the Veteran’s neck pain was in 1991, he found that this was during a period when the Veteran was not on active service. Such conflicts with the evidence of record showing that the Veteran served on active duty from February 1991 to January 1992. Accordingly, the Board affords this opinion no probative value as it is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran submitted private medical opinions in support of his claim. Correspondence dated in May 2014 from E.R., D.C. notes that the Veteran reported the onset of his neck pain in 1991 after a hard landing during pilot training. The pain worsened following night flights utilizing night vision goggles in a helicopter. E.R. stated that in her professional experience and based on the available medical and chiropractic literature, the Veteran’s duties as a helicopter pilot encouraged the spinal degenerative lesions to develop prematurely and asymptomatically in the cervical spine. She opined that it was more likely than not that the Veteran’s degenerative disc disease of the cervical spine is a result of a hard landing in 1991 and his work in the military placed him in situations that worsened the condition. Dr. M.G. agreed with E.R., pointing to medical literature and studies showing an increased incidence of spinal symptoms in military members airborne in helicopters. A June 2013 opinion from Dr. K.S. notes that “most probably,” the Veteran’s congenital fusion at C6-7 “placed extra stress and strain on the adjacent joints so that physical activity and wearing helmets, etc., are likely to have hastened the degenerative process adjacent to a congenital fusion.” In correspondence dated in May 2016, Dr. R.W. noted review of the Veteran’s medical records and a history provided by the Veteran. Dr. R.W. explained that congenital fusion is not routinely screened for during general enlistment or aviation-specific examinations because there is no expectation of increased risk of injury or for earlier or greater symptomatology from the condition. The Veteran currently has degenerative changes diffusely along his spine that are consistent with his age, but more pronounced in the levels directly above and below his fusion. Dr. R.W. stated that the age-related changes in the spine are not unexpected, but the presence of pain beginning after the 1991 incident is atypical and not expected from the congenital fusion or routine flying duty. Accordingly, Dr. R.W. concurred with Dr. R.S.’s opinion that the congenital fusion placed extra stress on the adjacent joints so that physical activity hastened the degenerative process. As there is no evidence of the Veteran having symptoms of neck pain or spondylosis prior to his military service, Dr. R.W. found the current neck pain was more likely than not a permanent aggravation of the Veteran’s congenital neck condition caused by a service-related trauma. After a review of the above, and affording the Veteran the benefit of the doubt, the Board finds that there was a superimposed injury to the Veteran’s neck during service, specifically the 1991 helicopter landing. The Board finds that the Veteran has credibly reported ongoing neck pain that began after the 1991 helicopter landing. The evidence shows that while the Veteran had a pre-existing cervical fusion, he has a current diagnosis of cervical spondylosis that has been linked to the in-service incident. Resolving all doubt in the Veteran’s favor, the Board concludes that service connection for cervical spondylosis is granted. 38 U.S.C. § 5107(b). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Connor, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.