Citation Nr: 21067473 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-20 519 DATE: November 4, 2021 ORDER Entitlement to service connection for cervical spine degenerative disc disease (DDD) is granted. Entitlement to service connection for right upper extremity radiculopathy, secondary to service-connected cervical spine DDD, on a causation basis, is granted. Entitlement to service connection for left upper extremity radiculopathy, secondary to service-connected cervical spine DDD, on a causation basis, is granted. Entitlement to service connection for headaches is granted. Entitlement to service connection for a temporomandibular joint (TMJ) disorder is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's cervical spine DDD is related to service. 2. The Veteran's right upper extremity radiculopathy is caused by her now service-connected cervical spine DDD. 3. The Veteran's left upper extremity radiculopathy is caused by her now service-connected cervical spine DDD. 4. The evidence is at least evenly balanced as to whether the Veteran's headaches are related to the December 2004 ACDUTRA head injury. 5. The evidence is at least evenly balanced as to whether the Veteran's TMJ disorder is related to service and the December 2004 ACDUTRA head injury. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cervical spine DDD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. The criteria for entitlement to service connection for right upper extremity radiculopathy, secondary to service-connected cervical spine DDD, on a causation basis, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for left upper extremity radiculopathy, secondary to service-connected cervical spine DDD, on a causation basis, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 5. The criteria for entitlement to service connection for a TMJ disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1994 to February 1999 and additional Reserve service, including active duty for training (ACDUTRA) from December 17, 2004 to January 5, 2005. This case comes before the Board of Veteran Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, denied the Veteran's claims for service connection for cervical spine condition, headaches and a TMJ condition. The additional issues of bilateral upper extremity radiculopathy have been added to the appeal as part of the cervical spine disability, as these are complications and a separate formal claim is not necessary. See Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021); 38 C.F.R. § 3.155(d)(2). In November 2021, the Veteran testified at a Virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has not yet been associated with the record. As the instant decision results in complete grants of the benefits sought, it is not necessary at this time. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). As relevant, the term "active military, naval, air, or space service" includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or cerebrovascular accident which occurred during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Accordingly, service connection may be granted for disability resulting from disease or injury incurred while performing ACDUTRA and for disability resulting from injury or the specified cardiac or cerebrovascular events incurred while performing INACDUTRA. Id. ACDUTRA is defined, in part, as "full-time duty in the Armed Forces performed by reserves for training purposes." 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). The term INACDUTRA is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of the title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary must give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual background The factual background for the cervical spine, bilateral upper extremity radiculopathy, headaches and TMJ disorder claims will be discussed together for brevity followed by a separate analysis for each disability. Service treatment records (STRs) from the February 1994 to February 1999 period of active service do not show any complaints or treatment for ongoing neck pain, headaches or TMJ. A separation examination was not located. The Veteran's DD 214 show that the served in Navy as a multi-sensor operator. She completed aircrew candidate training. December 2004 service records confirm that the Veteran was ordered to a 20 day period of ACDUTRA from December 17, 2004 to January 5, 2005 with travel abroad. April 2014 VA treatment records reflected that the Veteran requested acupuncture treatment for low back pain. She reported developing back pain in service with multiple years of wearing heavy gear and engaging in repetitive strenuous activity. Her pain had been worsening. Physical examination showed pain to the cervical paraspinous regions. In February 2016, Dr. D completed a Neck Disability Benefits Questionnaire (DBQ) for the Veteran. He diagnosed mechanical cervical pain, cervical strain, cervical spondylosis and DDD, cluster headaches with migraine, and TMJ disorder. He noted the Veteran's military history of sitting or lying on the deck of helicopters while peering over the edge in flight with a helmet and wearing survival vest. These activities occurred over eight years working on helicopter flight operations. The Veteran also sustained a head injury in December 2004 from an aircraft baggage door striking her head. Currently, the Veteran had limited movement, popping / clicking in the neck and ears, right sided facial numbness, among others. Neck physical findings were detailed. He summarized that the Veteran's in-service aircraft crewmember operation caused neck strain and then such symptoms significantly increased following the December 2004 ACDUTRA head injury. He opined that the cervical injury was related to service and that the headaches were related to the cervical injury. In April 2016, the Veteran reported that she underwent extremely strenuous physical training as part of Naval Aircrew Candidate School. As a crewman, she had to wear heavy flight gear and work in odd positions to load and unload cargo and with target recovery. She also performed search and research operations that involved strenuous labor. Then, she reported that a baggage compartment struck her head and she started experiencing intermittent headaches. She stated that the persistent neck pain/ stiffness and headaches continuously worsened since service. She did not report her neck injury during service to maintain mission readiness. She had private treatment in 2004 and sought VA treatment in 2008. The private medical records from 2004 were no longer available. In July 2016, the RO obtained VA medical opinions for the headache and cervical spine disability claims from a physician. The physician reviewed the claims folder and issued negative medical opinions for both claims. She noted the reported head injury from striking a plane baggage compartment door. However, there were no medical records showing head trauma or neck injury from this event. In December 2016, the Veteran reported that she wore approximately 31 pounds of flight gear during service and submitted corresponding pictures. She made repetitive head and neck movements during regular helicopter operations. She detailed the unusual and strenuous positions she regularly engaged in as a helicopter crewmember with flight gear. She also reported a December 2004 ACDUTRA injury where the baggage compartment door of a large aircraft struck her head. She continued to work through the injury, but began experiencing severe headaches and nausea. She was unable to seek medical attention, and the symptoms continued intermittently during the rest of her ACDUTRA period. December 2016 VA cervical spine magnetic resonance imaging (MRI) study showed mild mid cervical spine degenerative changes. December 2016 VA treatment records noted complaints about neurological symptoms affecting both upper extremities. The clinician assessed cervicalgia and cervical radiculopathy. In March 2018, Dr. D, a treating chiropractor, submitted a letter in support of the headache claim. He had regularly treated the Veteran. He found the Veteran credible in her December 2004 head injury report. For TMJ, Dr. D opined that the December 2004 head injury affected her TMJ from the direct trauma to her head and spine. Moreover, the Veteran's MOS as a helicopter flight crewman contributed to the cervical DDD and associated long term dysfunction. He cited studies showing an increase in DDD due to whole body vibration, such as that seen in helicopter flights. as well as variables such as wearing heavy gear and in awkward body positions. He explained that TMJ disorders frequently occurred without trauma to the mandible. However, microtrauma was also a well-documented cause, and it can result from a direct injury to the cranium. Dr. D opined that the December 2004 head injury described by the Veteran caused a TMJ disorder. He also noted a link between cervical spine injuries and TMJ disorder as also being well supported by the medical literature. Dr. D furnished a positive medical opinion for the headache claim. He stated that the medical literature showed a relationship between traumatic head injury and headaches. He detailed the pathological mechanisms. Dr. D also furnished a positive medical opinion for the cervical spine claim. Neck pain was a common complaint following traumatic head injury. He indicated that the Veteran sustained the type of head injury that medical literature associated with cervical spine injury. He noted the Veteran's MOS as a helicopter flight crewman. The Veteran's cervical spine imaging studies showed degenerative disc and joint disease. Dr. D related it to service, specifically the whole body vibration experienced during helicopter flights. He also reported that it was not uncommon for a delay in the development of symptomatology ranging from weeks to months. In November 2019, S.F. furnished a letter on behalf of the Veteran. He served with the Veteran during her December 2004 to January 2005 ACDUTRA period. He stated that the Veteran immediately reported a head injury from an insecure latch on the aircraft's baggage door. He was responsible for assessing her condition. He stated that she had a contusion on the top of her head. She appeared anxious to continue her duties, so he did not recommend relieving her from duty. He stated he believed the Veteran maintained the highest standards of professional conduct and honesty. Cervical spine disability For the following reasons, the Board concludes that service connection for cervical spine DDD is warranted. The disputed issue is whether there is a relationship between service and current cervical spine DDD. The Veteran is competent to report about neck pain, its history, and her injury history. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). She asserts that she developed neck pain from exertive activity as a flight crewman and the December 2004 ACDUTRA head injury. Although STRs do not document neck pain, service records confirm that she worked as a flight crewmember and had a period of December 2004 and January 2005 ACDUTRA traveling abroad. The service records are consistent with her April 2016 and December 2016 descriptions of exertive military activities and December 2004 head injury. S.F. and Dr. D attested the Veteran's credibility. The Board considers the Veteran's lay reports about exertive military activity, December 2004 head injury and longstanding neck pain credible. Id. The medical evidence supporting the claim includes the February 2016 Neck DBQ and March 2018 letter, both authored by Dr. D. He relates the Veteran's current cervical DDD to exertive activity in service and the December 2004 ACDUTRA head injury. His determination is based upon the Veteran's reported history, injury description and physical examination. He found that the medical literature supported a link between the current neck disabilities and her exertive activities during military service as well as the December 2004 ACDUTRA head injury. The Board considers Dr. D's medical opinions from the February 2016 Neck DBQ and March 2018 letter probative to show a relationship to service for current cervical spine DDD. As to the July 2016 VA medical opinion, the physician implies that contemporaneous medical evidence is required and summarily rejects the Veteran's reported history. However, contemporaneous treatment is not required to show a relationship. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The physician also did not fully consider the circumstances of her service as a flight crewman. Given these limitations with the supporting rationale, the July 2016 VA medical opinion is not probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (setting forth factors to be considered in assigning probative weight to an opinion). For the foregoing reasons, the Board finds that a relationship to service for cervical spine DDD is in a state of relative equipoise. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for cervical spine DDD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bilateral upper extremity cervical radiculopathy While the Veteran has not filed claims of service connection for upper extremity radiculopathy, the Court has indicated that such claims can be adjudicated by the Board even in the absence of explicit AOJ adjudication. Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021) (38 C.F.R. § 3.155(d)(2) requires that, when entitlement to secondary service connection is raised, a formal claim for secondary service connection need not be filed, rather, VA must consider those "complications" in connection with the claim on appeal). As relevant, December 2016 VA treatment records assessed the Veteran as having bilateral upper extremity radiculopathy as part of her cervical spine disability. While there is no clear and direct opinion that the Veteran's bilateral upper extremity neurological disabilities are caused by her now service-connected neck disability, the diagnoses noted above in the December 2016 VA treatment records in essence support the conclusion that she has current bilateral upper extremity radiculopathy which is caused by her now service-connected cervical spine disability. See also 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note 1. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's bilateral upper extremity radiculopathy was caused by her service-connected cervical spine disability. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral upper extremity radiculopathy, secondary to service-connected cervical spine disability, on a causation basis, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Headaches For the following reasons, the Board concludes that service connection for headaches is warranted. The disputed issue is whether there is a relationship between service and current headaches. The Veteran is competent to report about headaches, its history, and her injury history. Jandreau, 492 F.3d at 1377. She reports that she developed headaches shortly after the December 2004 ACDUTRA head injury. There is no contemporaneous medical report. However, for the reasons noted above, the Board finds the Veteran credible in her injury and symptom reports. Her reports are probative to show that the December 2004 ACDUTRA head injury occurred and that she experienced headaches immediately afterwards. Id. The medical evidence supporting the claim includes the March 2018 letter by Dr. D. He relates the Veteran's current headaches to the December 2004 ACDUTRA injury and explains the pathological relationship between head trauma and headaches. The Board considers Dr. D's medical opinion from the March 2018 letter probative to show a relationship to injury incurred during December 2004 ACDUTRA for current headaches. As to the July 2016 VA medical opinion, the physician overlooks the Veteran's reports about the December 2004 ACDUTRA injury and headaches based upon an absence of contemporaneous medical treatment. Contemporaneous medical treatment is not required to show a relationship to service. Buchanan, 451 F.3d at 1337. Given these limitations with the supporting rationale, the July 2016 VA medical opinion is not probative. Nieves-Rodriguez, 22 Vet. App. at 304 (setting forth factors to be considered in assigning probative weight to an opinion). For the foregoing reasons, the Board finds that a relationship to service for headaches is in a state of relative equipoise. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for headaches is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TMJ disorder For the following reasons, the Board concludes that service connection for a TMJ disorder is warranted. The disputed issue is whether there is a relationship between service and the current TMJ disorder. The Veteran is competent to report about symptoms associated with her TMJ, its history, and her injury history. Jandreau, 492 F.3d at 1377. She reports that she sustained a December 2004 ACDUTRA head injury and was later diagnosed with a TMJ disorder. There is no contemporaneous medical report. However, for the reasons noted above, the Board finds the Veteran credible in her injury reports and current symptom reports. Her reports are probative to show that she experienced a December 2004 ACDUTRA head injury and has current TMJ symptoms. Id. The medical evidence supporting the claim includes the March 2018 letter by Dr. D. He relates the Veteran's current TMJ disorder to the December 2004 ACDUTRA injury as well as service-connected cervical spine DDD. He reports that medical literature supports a relationship between head trauma and microtrauma to TMJ disorders. The Board considers Dr. D's medical opinion from the March 2018 letter probative to show a relationship to the head injury incurred during December 2004 ACDUTRA for the current TMJ disorder. There is no conflicting medical opinion. For the foregoing reasons, the Board finds that a relationship to service for a TMJ disorder is in a state of relative equipoise. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a TMJ disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.