93 Decision Citation: BVA 93-13347 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-39 511 ) DATE ) ) ) THE ISSUES 1. Service connection for a neck disorder. 2. Service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William L. Pine, Associate Counsel INTRODUCTION The veteran served on active duty from March 1958 to December 1959 and October 1961 to June 1962. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 1990 rating decision by the Department of Veterans Affairs Regional Office (VARO) in Cheyenne, Wyoming. VARO notified the appellant of the decision and of his appellate rights by letter in March 1990. A notice of disagreement was received in March 1990. A statement of the case was issued in June 1990. The substantive appeal was received in July 1990. There was a hearing on appeal in October 1990, at which the appellant withdrew his appeal from all other denials of claims promulgated in the February 1990 rating decision, except for service connection for a neck disorder and headaches. VARO issued a supplemental statement of the case in December 1990. VARO issued a rating decision and a supplemental statement of the case (SSOC) in March 1991. The Board received the appeal in August 1991. The appellant's representative in this matter, Disabled American Veterans (DAV), provided a brief in December 1991. The Board remanded the case in April 1992. VARO issued a rating decision in January 1993 and a SSOC in February 1993. The appeal was received at the Board in May 1993, and DAV provided a brief on June 4, 1993. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he sustained a fracture of the neck in service in March 1958 when he was hit in the helmet by a round of ammunition fired on a firing range while he was on duty servicing targets; he avers that he has had neck pain and headaches since that event. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), the Board has reviewed and considered all relevant evidence and material of record in the veteran's claims file and for the following reasons and bases, it is the decision of the Board that service connection is not warranted for a neck disorder or for headaches. FINDINGS OF FACT 1. The appellant sustained a neck injury prior to entrance into service; no fracture of the neck is documented in the appellant's medical records. 2. Residual disability from the appellant's preservice neck injury did not undergo an increase in severity during service. 3. The appellant did not sustain any documented orthopedic injury from a gunshot in service. 4. The appellant did not have chronic headaches in service. 5. The appellant's currently existing neck disorder and headaches are unrelated to any event in service. CONCLUSIONS OF LAW 1. A neck disorder was not incurred in or aggravated by peacetime service, nor may incurrence of arthritis of the cervical spine in service be presumed. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1992). 2. A chronic headache disorder was not incurred in or aggravated in peacetime service. 38 U.S.C.A. §§ 1131, 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant presents a well-grounded claim, and the pertinent facts have been developed. 38 U.S.C.A. § 5107(a) (West 1991). The appellant failed to report for a VA examination in November 1989. The rating decision of February 1990 was based on service records and then current VA hospital and outpatient records. The VA records satisfy the clinical requirements for a VA examination under the applicable regulation. See 38 C.F.R. § 3.326(a), (c) (1992). VARO implemented its standard procedures, VA Manual M21-1, part III (Nov. 8, 1991), in an attempt to obtain additional service medical and personnel records pursuant the Board's remand order. Records of certain private treatment reported by the appellant have been stated to be unavailable, and the appellant testified as to the unavailability of others. The appellant did not respond to requests for additional information necessary to further assist in developing his claim, and his whereabouts subsequent to the date of the Board's remand are unknown to either VARO or DAV. We conclude that the duty to assist, 38 U.S.C.A. § 5107(a) (West 1991), has been discharged. The question before the Board is whether the evidence supports the claim. Background Service medical records from the appellant's first period of service include a pre-induction physical examination report that is silent regarding the neck or headaches. A medical history given in March 1958 was marked affirmatively as to frequent or severe headaches. Associated commentary stated that the appellant had occasional headaches after reading. The subsequent service medical record through separation from the second period of service is silent for complaints, treatment or diagnosis of headaches. The service medical record from the first period of service contains no report of injury of the neck before or during service. There is no record of an incident in which the appellant was struck by a small arms round. In February 1959 the appellant requested that his cervical spine be examined; no reason was recorded for the request and an x-ray examination was reported as negative. The appellant reentered the service in October 1961. He completed a medical history in November 1961, in which he stated he was in fair health because of injuries, i.e., "neck broke [sic] in wreck unaware of injoury [sic]." Associated commentary stated it was a car wreck and he still had pains. He also reported that he injured his left leg in 1956 when a horse fell on it; he reported residual aches and pains. Initial physical examination was negative as to the neck. On orthopedic examination he repeated as history that he had a permanent L-1 profile during his first period of service and that two months before he was called up for duty in 1958, he was in an automobile accident injuring his neck and left leg. The examiner noted that the record from the first period of service was silent as to any of that history. He reported still having neck pain since separation in 1960. On physical examination he had a full range of motion of the cervical spine, without tenderness. The examination was otherwise negative, and x-rays of the neck were negative. A permanent U-1 and L-1 profile was recommended. The appellant was seen four times from November 1961 to December 1961 for complaints of pain in the neck from an old injury of undisclosed nature. In December 1961, he complained that his helmet hurt his neck and he was advised to wear his helmet for short periods of time to get used to it. A finding of no fracture by the examining orthopedist was noted. In May 1962, the appellant completed a medical history for separation which was negative as to headaches. Associated comment noted swollen joints associated with accident prior to service, with occasional trouble now and U-1 and L-1 profile from orthopedic consult in November 1961. The physical examination report for separation was negative for headaches or neck disorder. The medical record is silent from the time of separation from service until December 1988, when the appellant sought VA outpatient treatment for complaints of chronic neck pain. Historically, he said he "took a hit in the neck in service." He complained of grating in the neck and headaches. He had full range of motion of the neck, without point tenderness or crepitus. X-ray examination revealed unusual degenerative changes of multiple cervical vertebrae, with most of the spurs anteriorly, and without evidence of fracture. The diagnosis was degenerative joint disease of the neck. The appellant was treated in a VA hospital in January 1989, primarily for reasons unrelated to the neck or headaches. He reported a history of headaches and neck pain, without reference to the cause or time of onset. On examination the neck was supple, with some pain with forced rotation to either side. He was treated with aspirin for probable arthritis pain, and chronic neck pain was diagnosed. On VA outpatient examination in March 1990, it was noted the appellant had been seen a month previously for headaches secondary to old cervical neck fracture. On examination the cervical spine had slightly reduced range of motion, mild crepitus and no tenderness to palpation. There was tightness across the trapezius muscles. The assessment was probable degenerative arthritis of the cervical spine. A CT scan was suggested, but the appellant deferred a decision whether to have it done. The appellant testified at a hearing on appeal in October 1990 that was struck in the helmet by a round fired from a rifle while he was "pulling targets" on a rifle range at Fort Carson, Colorado, about April 1958. He stated that the round "blew the helmet off [his] head, and that he "sort of" lost consciousness; the range instructor questioned him, determined he was not hurt, switched helmets with him and had him resume his duty. He stated he was not treated because he was transferred to Fort Ord, California soon thereafter. He testified that while at Fort Ord, he complained of headaches and pain from wearing the helmet, and that upon x-ray examination, the fracture was discovered. He stated he was relieved of duty for two weeks, given bed rest in his barracks and told not to wear the helmet. He stated that he sought treatment for his neck and headaches again at Fort Richardson, Alaska. He testified that in his second period of service, an examining doctor fabricated the history of a car crash two months prior to his first period of service; he swore he had never been in a car crash, and that his leg and neck injuries were from separate events. He testified that he had had no neck or headache problems prior to entry into service, and they both began when he was hit by a bullet in service. He stated that his first treatment after service was from a chiropractor some time between 1963 and 1965, but that the chiropractor had quit practice in 1982 and was now deceased. He testified that he now has a sore neck and occasional headaches, both of which became worse in recent years. The appellant has submitted two lay statements from persons verified by service personnel records to have been in his unit in March 1958. In a letter to the appellant of November 1990, [redacted] stated he was not surprised that the appellant was having difficulty with his neck, stating, "You are alive because you were wearing your protective gear while we were in the pits in the rifle . . . KD range." He stated that at the barracks that evening he learned why the appellant had changed helmets. An undated letter to the appellant from [redacted], received by VA in February 1991, stated, "I do recall the rifle range and the target pits we worked in pulling and marking targets and do remember a little confusion that day along the rifle range and remember some talk that night in the barracks about one of the boys having a close call." Analysis For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active . . . service, during other than a period of war, the United States will pay to any veteran thus disabled who was discharged . . . from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter . . . ." 38 U.S.C.A. § 1131 (West 1991) (emphasis added). The above statute governing basic entitlement to VA disability benefits confines the analysis of claims for disability compensation to the question whether the claimed disability results from disease or injury incurred in or aggravated during a specified period of service. Based on the records contemporaneous with service and the repeated contentions of the appellant that the injury from which his disabilities allegedly resulted occurred during his first period of service, there is no issue as to the incurrence of the alleged disabling injury during the appellant's second period of service. The inquiry focused on the second enlistment is limited to whether his disabilities result from the aggravation of a preexisting injury. As to the first period of service, the question is whether the appellant sustained a neck injury therein, or if a neck injury preexisted service, whether it was aggravated by service. The appellant entered the service in March 1958 without notation of any preexisting condition and is therefore deemed in sound physical condition unless clear and unmistakable evidence indicates otherwise. 38 U.S.C.A. §§ 1132, 1137 (West 1991); 38 C.F.R. § 3.304(b) (1992). The medical record from the first period of service is silent as to any injury of the neck, either preexisting or having been incurred during that service. The single reference to headaches predates the now-averred time of the alleged shooting incident, hence those headaches cannot be attributed to the alleged shooting injury, even if such injury in fact occurred. The single entry in the medical record from the first period of service pertaining to the neck is a bare notation of the appellant's request that his cervical spine be checked and a report of a negative x-ray finding. The reason for the request is not of record. That evidence is of little probative value to prove the fact of a neck injury at any time, before or during service. The appellant was, according to the record, fit and without disability at the time of separation from the service in December 1959. We cannot conclude that the appellant had any neck or headache disorder from the official record, either incurred in or aggravated by that period of service. The evidence for the contention that the appellant sustained a neck injury during his first period of service is derived from vague history given during outpatient and hospital treatment from December 1988 to March 1990, his testimony at a hearing and the statements of two comrades from service. The medical evidence does not itself corroborate the fact of the alleged injury nor indicate that the current findings of degeneration of the cervical vertebrae originated with a trauma sustained in service. The appellant reported that he "took a hit in the neck in service," where he elsewhere clearly states he was struck in the helmet by a bullet, implying that he sustained a neck injury. The recently reported history of an old neck fracture in the context of treatment for headaches is not informative as to the time or circumstances of such a fracture, and the records from the first period of service cannot bear on the time of an event the fact of which they cannot establish. The current medical record provides no evidence that he has had a fracture of the neck. There is no evidence of continuity of symptomatology from the complaints of neck problems in service. The appellant testified that he had chiropractic treatment as of 1963, but his testimony is too vague to establish any specific symptomatology sufficient to satisfy the evidentiary requirements of regulations regarding either continuity or statutory presumptions. See 38 C.F.R. §§ 3.303(b), 3.307(b) (1992). The service medical record from the second period of service clearly reveals that no disability of the neck was found on entrance, but history reported by the appellant and recorded in an orthopedic consultation associated with his entrance physical examination is clear and unmistakable evidence of preexistence of a neck injury. See 38 C.F.R. § 3.304(b) (1992). The appellant's statement on his entrance medical history, apparently in his own hand, that he "had neck broke in wreck," signed by the reviewing physician, and the essentially identical statement recorded by the consulting orthopedist, in conjunction with his complaints of old neck fracture made one week after entrance, are obvious and manifest indications that an injury had occurred as stated originally, in a motor vehicle accident before service. The appellant, in his hearing testimony, seeks to impeach the contemporaneous record from both periods of service. He related, as to the first enlistment, that he had two weeks of bed rest following x-ray confirmation of a neck fracture. The x-ray evidence from the first period of service shows no fracture. The appellant testified that the service physician fabricated the history of a previous injury in a motor vehicle accident. We find that statement incredible, because the first report is in hand printing which appears throughout the record on documents completed by the appellant, and apparently is his own printing. The medical history is signed by one physician and the orthopedic consultation report is signed by another. We conclude the history of a car wreck came from the appellant in 1961. As regards the alleged firing range incident, we observe that the appellant's lay affiants allude to but never state that the appellant was shot in the helmet. Mr. [redacted] wrote in terms substantially corroborative of the account as rendered by the appellant at his hearing, noting the fortuitous result of the appellant wearing protective gear on the firing range and learning later "why he had changed his helmet." The coincidence between the appellant's testimony and Mr. [redacted]'s statement tends to support the conclusion that the appellant was hit by a round as alleged. The statement by Mr. [redacted] is so vague as to be incompetent evidence of any particular fact. "One of the boys had a close call," states no specific event and names no individual. The hearing testimony together with the lay statements are not competent evidence that the appellant sustained any specific orthopedic injury or residuals of such injury as a result of the firing range incident; such a conclusion is purely medical, and beyond the competency of lay persons to make. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The medical record from the second period of service shows that the appellant's neck was asymptomatic, other than subjectively on entrance and no positive findings were made during the four documented instances of outpatient examination. There were no complaints of headaches during the second period of service. On separation he was without disability of the neck or headaches. There is clearly no evidence of any increase in the severity of a neck or headache disorder, and we find there was no aggravation of a preexisting condition. 38 C.F.R. § 3.306 (1992). The L-1 profile reported by the appellant as having been assigned during his first period of service is immaterial to this case. An "L" in the Army physical profiling system pertains to the condition of the lower extremities. See Hanson v. Derwinski, 1 Vet.App. 512, 514 (1991). The "U" profile recommended by the service orthopedist supports the finding of preexistence of some upper extremity limitation, and the lack of evidence of a change in the profile during service is evidence against finding aggravation of any upper body disability. The post service medical record essentially documents current pathology and does not establish onset during or within one year of service separation as to degeneration of cervical vertebrae or the time of onset of headaches. The history is purely from the appellant. We find such inconsistency and vagueness in his history as to hold it not credible or probative as to establish that his claimed disabilities are due to an injury sustained in his first period of service. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In sum, the clear preponderance of the evidence shows that the appellant did not sustain an injury of the neck resulting in neck and headache disabilities during his first period of service, nor did he during either period of service suffer aggravation of a neck or headache disorder originating prior to service. The preponderance of the evidence is against a grant of service connection for a neck or headache disorders. ORDER Service connection for a neck disorder and for a headache disorder is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 BETTINA S. CALLAWAY MATTHEW J. GORMLEY, III KENNETH R. ANDREWS, JR. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988 (see sec. 402 of the Veterans' Judicial Review Act (Pub. L. 100-687)). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.