Citation Nr: 22014092 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 93-14 271 DATE: March 11, 2022 ORDER Entitlement to service connection for a chronic cervical spine disability, to include C7 burst fracture residuals, with quadriplegia, is granted. FINDING OF FACT The evidence is in approximate balance that the Veteran's chronic cervical spine disability, to include C7 burst fracture residuals, with quadriplegia, is related to an in-service tractor injury. CONCLUSION OF LAW The criteria for service connection for a chronic cervical spine disability, to include C7 burst fracture residuals, with quadriplegia, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1984 to June 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1991 rating decision issued by the Department of Veterans Affairs Regional Office (RO) in Pittsburgh, Pennsylvania. This case has a long procedural history and has been before the Board and the United States Court of Appeals for Veterans Claims (Court) multiple times resulting in Orders vacating Board decisions and remanding the matter for further adjudication. In August 1992, the Veteran, his spouse, and a friend testified before a hearing officer at the RO. A transcript of the hearing has been associated with the claims file. In October 1995 and August 1997 the Board remanded the claim to the RO for further development. Then, in an August 1999 decision, the Board denied the claim. The Veteran filed a timely appeal to Court. In March 2001, pursuant to the Court granting a Joint Motion for Remand (JMR), the case returned to the Board, and, in a February 2002 decision, the Board again denied the claim. The Veteran again appealed to the Court, and the case was again remanded to the Board pursuant to a JMR. In December 2003 the Board remanded the claim to the RO for further development. When the case returned to the Board, in July 2008, an independent medical expert (IME) opinion from a private physician was requested. The IME opinion was obtained in November 2008 and a supplemental IME opinion was obtained July 2009 opinion. In a January 2010 decision, the Board again denied the claim. The Veteran filed a third appeal to the Court. In October 2011, the Court issued a Memorandum Decision vacating the Board's January 2010 decision. In September 2012, the Board for a fourth time denied the Veteran's claim, and the Veteran appealed to the Court. The Court again in a Memorandum Decision vacated the claim. Most recently in September 2014, the Board denied the Veteran's claim. The Veteran again appealed the decision to the Court. Pursuant to an August 2015 JMR, the Court vacated the Board's decision denying the claim. The claim then returned to the Board for further appellate review. In May 2016, the Board obtained an IME opinion in order to address conflicting medical opinions of record. In May 2017, the Board again denied the claim. The Veteran appealed the decision to the Court. In February 2019, the Court issued a Memorandum Decision vacating the Board's decision and remanded the matter for adjudication consistent with its terms. In May 2020, the Board remanded the claim for development consistent with the Memorandum Decision, including a new medical opinion. The case has since been returned to the Board for adjudication. Service connection for a chronic cervical spine disability The Veteran claims that injuries he sustained in an accident involving a tractor on June 7, 1988, while he was on "terminal military leave" but still on active duty, contributed to the quadriplegia which developed after he sustained injury to his cervical spine in a diving accident on June 25, 1988, after his separation from service. The Veteran officially separated from service on June 11, 1988. With reasonable doubt resolved in the Veteran's favor, the Board concludes that the Veteran has a current cervical spine disability that is related to an in-service tractor injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). An August 2020 VA neck examination shows current cervical diagnoses of quadriplegia secondary to C-7 burst fracture, intervertebral disc syndrome, spinal fusion, vertebral fracture, and scars status-post fusion. As such, the Veteran meets the first element for service connection, a current disability. As for the in-service element, at the time of the tractor accident, the Veteran reported some numbness in his right lower arm. He was next seen at a private hospital on June 10, 1988, for abdominal pains. Notwithstanding the Veteran's contention that his injuries were severe, that he had no use of his right arm, and could not move his head, there was no investigation of any cervical spine related pathology at that time or prior to June 25, 1988, when the Veteran suffered his diving accident. On the day of the tractor accident, the Veteran reported driving a tractor, floating in an inner tube in a pond, and executing a running dive into the water to collect inner tubes. During the August 1992 RO hearing, the Veteran testified that on June 7, 1988, he was working under a tractor taking the blades off when his younger son started the tractor which came forward, pinning him between the motor deck "and so forth." He testified that after the tractor accident, he felt numbness in two of his fingers and a portion of the underside of his right arm, and he "could hardly move my head." He stated that the clinicians in the emergency room told him that he had a neck muscle strain and that the numbness in the hands would resolve because it was caused by holding back the tractor. The Veteran's spouse testified that he lost consciousness for approximately one-half hour after the tractor accident. Several days later, he returned to a private hospital for medical treatment of abdominal pains. He testified that, the sensation of numbness in his hands and neck persisted after he was discharged from active duty on June 11, 1988, and continued until the diving accident on June 25, 1988. The Veteran stated that he did contact the Army to inform them of the injury and filed a claim for insurance coverage but received only a rude letter that he should seek help elsewhere. The insurance claim and Army letter is not of record. The Veteran stated that the dive he was performing at the time of the diving accident was, "[A] skim dive right over the surface of the water". The Veteran's spouse expressed her dissatisfaction with the thoroughness of the medical treatment he received at a private hospital in the aftermath of the tractor accident on June 7, 1988, implying that adequate medical treatment at the private hospital might have reduced the severity of the Veteran's injuries in the diving accident on June 25, 1988. The Veteran testified that statements in the medical records indicating that he struck his head in the diving accident were incorrect, and that medical personnel incorrectly assumed he had struck his head in the diving accident because of the quadriplegia, which resulted from the diving accident. In support of his assertion that some of the medical records reporting the circumstances of his diving accident were incorrect, the Veteran noted that, some medical reports incorrectly stated that he had sustained injuries while diving into a pool, rather than a pond. The Veteran's representative referred to a color photograph, which is included in the claims file. The representative explained that the photograph depicted the Veteran's spouse, holding mud she had scooped from the shallow pond into which the Veteran dove. The Veteran indicated that the swimming in which he was engaged on June 25, 1988, was the first activity of its kind which he had been capable of performing since the tractor accident of June 7, 1988, because he had been so severely injured in the tractor accident as to cause him to curtail most activities. He testified that he was able to drive an automobile but could not use his right hand and arm or turn his head. He and his spouse further described his activities on June 25. She stated that a neighbor had just completed mowing hay but a storm was moving in and that the Veteran drove a tractor to help bring in the hay. After that work, the Veteran went with others to the pond to cool off and were floating with inner tubes and batting a ball back and forth with only his left arm. When the event ended, the inner tubes had not been recovered. The Veteran reported that he ran down to the dock and dove into about two feet of water, scraping his elbows on the mud bottom but not striking his head. He stated his belief that the force of hitting the water in the dive caused a small fracture present since the June 7th accident to propagate to the major fracture causing quadriplegia. There are no service treatment records documenting a cervical spine injury related to a tractor accident, including no notation in the Veteran's examination upon separation. Nevertheless, the Veteran is competent to report the events that occurred and the symptoms he experienced during service. His report of an in-service tractor accident have been deemed credible lay evidence of such, given his consistent reports throughout the pendency of the appeal and corresponding medical records. Therefore, an in-service injury has been demonstrated. As such, the remaining question is whether there is a nexus between the Veteran's in-service tractor accident and current cervical spine disabilities. The evidence is clear that the Veteran's current quadriplegia from the chest area down disability was caused by a burst fracture at C7 that manifested immediately after the diving accident after service. Therefore, the dispositive issue is whether the Veteran sustained injuries on June 7, 1988, (tractor accident) while on active duty with a residual disability present at the time of discharge on June 11, 1988, and whether any of those residual disabilities caused or aggravated the burst C7 fracture on June 25, 1988, (diving accident) after service. On the nexus question, there are probative medical opinions in favor of and against the claim. The Veteran has consistently alleged neck numbness and pain after the in-service June 1988 tractor accident. In his December 1990 VA Form 21-526, Veteran's Application for Compensation and Pension, the Veteran noted that he was involved in a tractor accident on June 7, 1988, in which he sustained lacerations to the front of his neck, and abrasions on both sides of his back and both arms as a result of being dragged and pinned by the tractor to a garage doorway. He also referred to treatment at a private hospital for numbness in arms and abdominal pain associated with this accident. He indicated that, "Paralysis occurred 25 June [19]88 while diving into [a] pond." During service, a private emergency room report, dated June 7, 1988, notes that the Veteran had been in an accident in which he was caught in a tractor. The Veteran reported that he had been working on a mower when the mower moved forward, pinning him between the tractor and the mower. The Veteran's wife stated that the Veteran was unconscious for about 4 to 5 minutes. The Veteran reported that he experienced "shortness of breath upon waking up." The Veteran complained of numbness in the right arm from the elbow down; however, sensation was intact to sharp and dull touch. The Veteran had abrasions of the left elbow, left and right sides, the neck area around the Adam's apple, and the right clavicle. A separate private physician's history and physical examination, dated June 7, 1988, indicates that the Veteran had been brought to the hospital by ambulance at 11:00 a.m. and that he was conscious. The report states that the Veteran had been caught between a tractor and a door. The report reflects abrasions over the Veteran's clavicle, neck, and anterior area. The report further notes that there was no evident neurovascular impairment and no neurological findings. The Veteran was treated with Motrin, and X-ray studies of his right clavicle, cervical spine, and chest were performed. He was discharged with later entries in the report that the family was advised to be observant for signs of a head injury, but there was no recommendation for further follow-up at the hospital or with a private physician. A private report of an X-ray study of the Veteran's cervical spine, dated June 7, 1988, indicates that no fracture or dislocation was identified. On cross table lateral study of the cervical spine, the examiner noted that there was a one-centimeter, well-corticated bone fragment located posterior to the C-7 transverse process. The examiner opined that this represented either a [dis-] united ossification center or that it was a residual of old trauma. The examiner further opined that the bone fragment definitely did not represent an acute fracture. Following a complete cervical spine series, the examiner indicated that the bony alignment was normal, and that no acute fracture was detected. The vertebral bodies, interspaces, prevertebral soft tissues, and facet joints were unremarkable. The neural foramina appeared to be unremarkable. The examiner's diagnostic impression was that there was no fracture detected. A subsequent private medical report, dated June 10, 1988, notes that the Veteran was complaining of abdominal pain following a previous tractor accident. A triage assessment, also dated June 10, 1988, noted that the Veteran had previously had an accident involving a tractor. The Veteran's past medical history, which included neurological history, was listed as "none." The health care provider who completed the triage assessment noted that the Veteran complained of abdominal pains, which began with the tractor accident. A slight tenderness of the right upper quadrant was also noted. An x-ray study of the Veteran's abdomen was completed. The examiner's impression was of a normal abdomen. An emergency medical technician (EMT) report on June 25, 1988, indicates that the Veteran complained of pain in the neck area, between his shoulder blades. It was reported that he dove into a pond behind his home, and that he struck both elbows on the bottom of the pond. The Veteran denied striking his head in the dive, and he denied losing consciousness. The Veteran stated that he had no feeling from the neck down, and that he could not move his feet or toes. He reported a tingling sensation from his neck down. He indicated that he had feeling and some movement in both arms, but his strength was described as weak. The EMT noted that the Veteran had abrasions on his right elbow, and he complained of difficulty breathing while he was in the water. A private nursing note, also dated June 25, 1988, lists the Veteran's pertinent history as that of a 22 year-old male patient, who dove into a pond, "[W]ith arms extended over [his] head," and struck the bottom of the pond. The nursing note did not reference the Veteran's prior medical treatment earlier in June 1988. The Veteran was transferred to another private medical center by aircraft. Medical records furnished by a private medical center reflect treatment of the Veteran from June 25, 1988 to July 1988, and included a medical report which indicated that the Veteran dove into a pond and struck his head. A medical progress note stated that the Veteran had been in an accident in which he dove into a pool, "[W]ith his hands above his head." A report of a single, lateral view X-ray study of the Veteran's cervical spine, dated June 26, 1988, included the examiner's note that six complete vertebra were shown. The examiner further indicated that the burst fracture of C-7 was seen very poorly, and that there was encroachment of the vertebral canal at C-7. The claims file contains multiple VA and private medical opinions on the relationship between the Veteran's current cervical spine disabilities and in-service tractor accident. The evidence in favor of the claim includes private and VA medical opinions. In an October 1997 letter, a private orthopedic physician indicated review of the claims file and examination of the Veteran. The Veteran had informed that on June 7, 1988, he had been involved in an accident in which a tractor had inadvertently started and run over him, pinning his head and neck. The orthopedic physician noted that the Veteran stated that he had experienced an immediate onset of right upper extremity numbness, which continued to persist. The Veteran also reported the onset of substantial cervical pain and reduced range of motion with the tractor accident. The Veteran indicated that, he received private medical treatment and he was told that he had sprained his neck. The orthopedic physician indicated that, on June 25, 1988, the Veteran sustained a second injury to his cervical spine, when he dove into four feet of water, in what the Veteran described as a "racing dive." Based on review of medical records provided by the Veteran, including imaging studies, the private orthopedic physician opined that the Veteran's diving accident of June 25, 1988, did not sufficiently explain the injury he sustained. As rationale, the orthopedic physician recounted that the Veteran reported that he did not lose consciousness, he did not strike his head on anything, and there was no mention of any scalp laceration or abrasion on the emergency room reports. Based on the history provided by the Veteran, including the Veteran's complaints of the immediate onset and persistence of right upper extremity numbness in an ulnar nerve distribution, as well as significant cervical pain, the orthopedic physician believed that the Veteran's tractor accident injury, "[P]restressed the spine, resulting in the subsequent burst-type fracture at C- 7". The orthopedic physician stated that no further imaging studies of the Veteran's spine, such as a CT scan and/or an MRI were performed following the Veteran's first cervical injury, which may have detected the prestressing condition. He further noted that the C7 vertebra is notoriously difficult to visualize, due to its presence at the cervical thoracic junction. In a June 2003 addendum, the same private orthopedic physician that initially provided a medical opinion in October 1997 opined, within a reasonable degree of certainty, that the Veteran's neck injury of June 7, 1988, resulted in structural damage or injury to the cervical spine that allowed the fracture to occur on June 25, 1988. It was further noted that the injury on June 7, 1988, contributed to spinal instability which led to the fracture on June 25, 1988, although he acknowledged that without personally viewing the X-rays obtained on June 7 there was no way to determine whether the assessment of those X-rays at the time was correct. In summary, the orthopedic physician concluded that the Veteran's quadriplegia occurred because he injured his neck on June 7, 1988, and sustained a second injury on June 25, 1988, that ultimately led to fracture. The orthopedic physician indicated review of surgical reports, imaging reports and doctors' notes and that he had relied on those reports in addition to the history that the Veteran provided in formulating an opinion. The orthopedic physician also discussed the confusion about the term "prestressed," a term he had used in a prior medical statement. He indicated that he used the term in reference to the Veteran's spine. Based on the history presented as well as the records documented by the VA Hospital, the orthopedic physician indicated that the mechanism of injury following the Veteran's June 25, 1988, dive did not fully explain the fracture that was eventually sustained. Subsequently, in a January 2009 letter, the private orthopedic physician acknowledged a conflicting November 2008 IME opinion and reiterated his belief that the tractor accident trauma resulted in a condition which led, when the cervical spine was exposed to a second force, to a catastrophic cervical spine injury during the subsequent diving accident. Although there was no objective evidence of a neurologic deficit following the tractor accident, the orthopedic physician contended that the Veteran sustained a ligamentous injury to the cervical spine which was then exposed to repeated second stress that led to the catastrophic failure. The orthopedic physician concluded that, within a reasonable degree of certainty, the June 25, 1988, diving injury would not have occurred unless the Veteran had first sustained an injury to his cervical spine on June 7, 1988. In an August 2020 VA medical opinion, a physician acknowledged review of the claims file and opined that the Veteran's current cervical condition is at least as likely as not incurred in or caused by the claimed in-service injury. As rationale, the physician referenced private emergency room records following the in-service tractor accident which contained x-ray findings of a 1 centimeter "well-corticated ossified fragment posterior to the process of C7, consistent with an old injury or ununited ossification center." Additionally, the Veteran reported numbness during this visit. Based on the foregoing, the physician noted that neurologic symptoms following a traumatic injury and normal x-rays warrant further investigation with more imaging studies, however, clinical studies of the Veteran's C7 fragment were not completed or further investigated prior to the June 25, 1988 diving injury resulting in a C7 burst fracture. The physician concluded that there is potential for a facture to have been present following the tractor accident and missed on x-ray imaging studies. There are multiple medical opinions against the claim, including a July 1995 IME opinion, February 1998 VA opinion, November 2008 IME opinion, July 2009 supplemental opinion, and May 2016 IME opinion. In a July 1995 IME opinion, a physician concluded that the injuries that the Veteran sustained on June 7, 1988, were not related to his injuries received on June 25, 1988. As rationale, the physician referenced clinical records and imaging studies of the cervical spine. The physician further opined that the diving injury that the Veteran sustained on June 25, 1988, was typical of an injury that might be sustained upon diving into shallow water and striking one's head. In a February 1998 VA opinion, a physician who is also a clinical instructor in orthopedic surgery opined that although the tractor accident and the diving accident were temporally related, there was nothing in the medical record suggesting that the two accidents were causally related; that is, that the tractor accident and resulting injuries on June 7, 1988, predisposed the Veteran to the injuries he sustained on June 25, 1988, in the diving accident. The physician explained that, while it was possible that the Veteran sustained a neuropraxia or possibly a cervical disc-type injury on June 7, 1988, there was no indication of any bony injury at that time. The physician further explained that, clearly the pathology associated with the injury on June 25, 1988, was a bony injury to the C-7 vertebrae. The physician concluded that, therefore, it did not appear that the Veteran's injury of June 7, 1988, predisposed him to the injury of June 25, 1988. In July 2008, the Board requested an IME opinion regarding the etiology of the Veteran's burst fracture residuals of C-7. Specifically, the Board requested that the medical expert render an opinion addressing whether it is at least as likely as not that the Veteran's current cervical spine disability, to include C-7 burst fracture residuals with quadriplegia, is the proximate result of the injuries the Veteran sustained on June 7, 1988, during his military service. In providing the opinion, the expert was asked to discuss whether the injuries from the in-service tractor accident predisposed or prestressed the Veteran's cervical spine to the injuries he sustained in the diving accident on June 25, 1988. The expert was also asked to consider and discuss the significance, if any, of the July 1995 IME opinion and February 1998 VA medical opinion, along with the opinions expressed by a private orthopedic physician in October 1997 and July 2002 discussed in detail below. In a November 2008 IME opinion, a physician and associate professor of orthopedic surgery indicated review of the claims file and opined that he did not believe that the Veteran's injury of June 7, 1988, was related to his subsequent spinal cord injury or quadriplegia. As rationale, the professor recounted the Veteran's contentions that he had a short loss of consciousness after the June 7, 1988, tractor accident and noted that subsequent private x-rays showed no evidence of a fracture. The physician indicated review of June 25, 1988, diving accident medical treatment records and acknowledged subsequent reports from the Veteran in which he stated that he did not strike his head during the diving accident. The physician opined that the Veteran's neurologic injuries were directly related to the diving accident and subsequent C7 burst fracture he suffered on June 25, 1988. The mechanism of injury (diving headfirst into shallow water), the acute nature of the neurologic injury (immediate onset of quadriplegia in a previously neurologically normal individual), and the type of injury to the spinal column (a burst fracture with retropulsion of the bone into the spinal canal with immediate compression of the spinal cord) were all classic features for this type of devastating injury. The physician indicated that review of October 1997 and July 2002 opinions of a private orthopedic physician, discussed in detail below, which suggested that the Veteran's injury on June 7, 1988 "pre-stressed" the Veteran and thus resulted in the Veteran's subsequent C7 burst fracture. The physician noted that he had not previously encountered the term "pre-stressed" in any academic literature discussions. He believed he understood what the private orthopedic physician was suggesting, but he did not agree with him because the Veteran did not have any objective evidence of an acute skeletal injury to his cervical spine, nor did he have any evidence of a neurological deficit following the injury on June 7, 1988. There was no clinical or radiographic evidence to indicate that there was a condition that pre-disposed the Veteran to suffer a C7 burst fracture or neurologic sequelae of the fracture. Rather, as noted, he had a high-energy diving accident that directly caused a C7 burst fracture and spinal cord injury, which rendered him quadriplegic. The professor did not believe that the Veteran's injury of June 7, 1988, was related to his subsequent spinal cord injury or quadriplegia. In a July 2009 supplemental medical opinion, the physician that provided the November 2008 IME opinion, indicated agreement with the July 1995 IME opinion. In summary, the physician did not believe that there was any relationship between the two injuries in-service tractor accident and post-service diving accident and that the first injury did not predispose the Veteran to the second injury which was directly related to the high energy, headfirst, diving accident he suffered. In an October 2009 letter, the Veteran's attorney argued that the IME opinion and addendums were inadequate because the physician relied on erroneous history and account of the diving accident injury. In May 2016, the Board obtained an IME opinion from a specialist in adult spine surgery. The physician indicated review of the claims file and opined that there was no direct evidence that the Veteran had residual disability in the cervical spine on June 11, 1988. As rationale, the physician referenced imaging studies after the tractor accident and opined that "well-corticated bone fragments such as the one that was mentioned on the lateral view are not uncommon to see and based on the best available evidence that I can review there was no evidence of fractures, subluxation, dislocation, or other evidence of bony injury or ligamentous injury noted." He concluded that positive opinions to the contrary would not be based in any medical certainty and that he disagreed that the injury pre-stressed the spine, caused any structural damage or injury to the spine, or caused any ligamentous injury to the spine based on negative imaging and subsequent discharge. As stated above, the Board has found the Veteran's statements regarding the circumstances of the in-service tractor accident and post-service diving accident credible. To this regard, the Veteran has testified that he did not strike his head during the diving accident. Because negative VA and IME opinions were based on an inaccurate factual premise, that the Veteran hit his head during the diving accident, the Board affords these opinions no probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (per curiam); cf. Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) ("An adequate medical report must rest on correct facts and reasoned medical judgment so as [to] inform the Board on a medical question."); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the factually accurate fully articulate, sound reasoning for the conclusion... that contributed probative value to a medical opinion."). Further, although the May 2016 IME acknowledged review of conflicting October 1997 private orthopedic physician opinion, the IME did not address the orthopedic physician's statement that a C7 vertebrae injury is "notoriously difficult to visual" and there have been technical difficulties in obtaining satisfactory images from this area. Upon review of the record, the Board finds the evidence is in approximate balance that the Veteran's current cervical spine disabilities are related to an in-service tractor injury. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a chronic cervical spine disability, to include C-7 burst fracture residuals, with quadriplegia, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. O'Connell Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Baker, 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.