Citation Nr: 9935133 Decision Date: 12/17/99 Archive Date: 12/23/99 DOCKET NO. 93-15 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for residuals of an injury sustained in an automobile accident in July 1972. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Keith W. Allen, Counsel INTRODUCTION The veteran served on active duty in the military from March 1967 to January 1970. In April 1993, the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, denied the veteran's petition to reopen a claim that earlier had been denied for service connection for residuals of an injury sustained in an automobile accident in July 1972. He appealed the RO's decision to the Board of Veterans' Appeals (Board). The Board issued a decision in May 1995 also denying his petition to reopen the claim, and he appealed to the United States Court of Appeals for Veterans Claims (Court)-formerly, the United States Court of Veterans Appeals. In February 1997, during the pendency of the appeal to the Court, the veteran's representative and the VA General Counsel filed a joint motion requesting that the Court vacate the Board's decision and to remand the case for further development and readjudication. The Court granted the joint motion later in February 1997 and, thereafter, returned the case to the Board for compliance with the directives of the joint motion. After further developing the case, including obtaining an opinion from an independent medical expert (IME), the Board issued another decision in February 1999 reopening the claim based on "new and material" evidence. See 38 C.F.R. § 3.156 (1999). The Board proceeded to remand the case to the RO for a de novo review of the record-to include consideration of medical evidence supporting the claim that the veteran had not waived his right to have initially considered by the RO. See 38 C.F.R. § 20.1304 (1999). After completing the de novo review of the record, the RO continued to deny service connection, and the case was returned to the Board for further appellate consideration. FINDING OF FACT The medical evidence is in relative equipoise on the question of whether a T2 fracture the veteran sustained in an automobile accident during service, in December 1968, was a predisposing factor in the extent of the damage that he later sustained to his spine in another automobile accident after service, in July 1972. CONCLUSION OF LAW With resolution of all reasonable doubt in the veteran's favor, the injury he sustained to his spine in the July 1972 accident is proximately due to or the result of the T2 fracture that he sustained during service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.310 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION In December 1968, while serving on active duty in the military, the veteran sustained a fractured T2 vertebra in an automobile accident. He eventually was placed on the Temporary Disability Retired List (TDRL), in January 1970, as 50 percent disabled. Effective March 31, 1972, he was found fit for duty and removed from the TDRL. A few months later, in July 1972, the veteran was involved in another automobile accident in which he sustained a fractional dislocation of the C7 and T1 vertebrae, rendering him a quadriplegic. As a result of the severity of the trauma to his spine, he underwent a foraminotomy of C6-C7 and C7-T1, on the right side, with bilateral posterior cervical fusion. In April 1973, the RO in Jackson, Mississippi, granted service connection for the residuals of the T2 vertebra fracture in service and assigned a 10 percent rating. The RO also determined the veteran was permanently and totally (P&T) disabled and, therefore, entitled to VA pension benefits (including special monthly pension based on the need for the regular aid and attendance of another person) because of the severity of the trauma that he sustained to his spine in the automobile accident after service. The veteran has consistently maintained that the T2 fracture he sustained during service had the practical effect of predisposing him to sustain more extensive damage to his spine in the second automobile accident after service, in July 1972. Consequently, he argues that service connection should be granted for the residuals of the 1972 accident, although it occurred after service, because they are, in a sense, "secondary to" the service-connected T2 fracture. For the reasons discussed below, the Board finds that the medical evidence of record concerning this dispositive question is approximately evenly balanced-both for and against the claim; hence, with resolution of all reasonable doubt in his favor, he is entitled to service connection. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by active service, or on a secondary basis, for disability that is proximately due to or the result of a service-connected condition. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a), 3.310(a). Section 3.310(a) has been interpreted to permit service connection for disability due to aggravation of a nonservice-connected disorder by a service-connected disorder. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In a December 1974 letter, John F. Brix, M.D., the Keesler Air Force Base attending physician following the 1972 accident, stated that it was "well within the realm of probability that the initial injury in 1968 was a contributing factor to the type of injury and neurologic damage sustained in the second accident." In addition, in a February 1974 statement, M.S. Mahaley, Jr., M.D., of the Division of Neurosurgery of Duke University Medical Center, indicated that it was "conceivable that [the T2 fracture] may have played some role in the susceptibility of the area just cephalad to that region to trauma at the time of his last accident." In July 1977, Dr. Brix submitted a second letter. He stated that he strongly disagreed with the determination of VA in denying the existence of a relationship between the T2 fracture and the injuries in the July 1972 accident. He noted that the location of the veteran's fractures, C7-T1, is rather unusual. He also noted that, at the time of the surgical exploration in July 1972, visual inspection showed evidence of considerable damage throughout the lower cervical and upper thoracic area. He went on to state that: [T]he injury in 1968 was a direct predisposing factor in the extensive damage suffered in the second accident in 1972. The earlier injury with associated bone and soft tissue damage would most likely have caused additional loss of flexibility of the entire spine, thus [the veteran's] second injury was more damaging than might have ordinarily been expected because of these previous factors. Therefore, I feel that the second injury is related to the initial injury of 1968 and, thus, should be considered as service connected. In a March 1978 letter, Kenneth R. Magee, M.D., professor of neurology at the University of Michigan Medical School, stated that he had reviewed the veteran's records, including Dr. Brix's findings. He opined that "with reasonable medical certainty," the veteran's 1968 injury did not predispose him to the severe damage sustained in 1972. More recent evidence includes statements from the veteran and his representative, and additional medical evidence. Of particular interest are three letters from other private physicians. In an August 1991 letter, Malcolm Shupeck, M.D., a neurosurgeon, noted that the type of injury that the veteran had, with fracture subluxation at C7-T1, was very unusual. He opined that the earlier upper thoracic spine injury was likely to have provided a substrate for this more severe injury to ultimately have developed. In addition, Charles T. Beemer, M.D., a private orthopedic surgeon, stated that he concurred with Drs. Brix and Mahaley that the veteran's second injury might well have been predisposed to by the first injury and the resulting loss of motion at the T2-T3 level. Finally, a July 1997 letter was received from Craig N. Bash, M.D., a neuroradiologist and assistant professor of radiology at the Uniformed Services University of Health Sciences. Dr. Bash stated that he disagreed with the opinion of Dr. Magee and agreed with the opinions of all the other physicians. He pointed out that Dr. Magee, as a neurologist, would not have had the experience or training to address this issue. He stated that these types of patients usually are followed by neurosurgeons or orthopedists, in consultation with neuroradiologists. In June 1998, in an effort to resolve the conflicting medical evidence of record, the Board requested an opinion from Peter W. Carmel, M.D., Professor and Chief of Medicine in the Department of Neurological Surgery, New Jersey Medical School. Dr. Carmel submitted a report of his impressions of the case in October 1998. Based on his review of the pertinent medical and other evidence of record, including the reports of X-rays taken of the veteran's spine on various occasions during service shortly after the T2 fracture, Dr. Carmel acknowledged that "it is remotely possible that stiffening of the spine in this region could have predisposed [the veteran] to an increased fulcrum of movement at C7-T1 in his subsequent automobile accident." Dr. Carmel ultimately concluded, however, that "there are several factors that make this interpretation unlikely." First, he cited the findings that were noted on the initial X-ray report (which was signed and dated December 23, 1968, by Dr. Samuel M. Andelman) indicating the veteran's disc interspace was narrowed, which Dr. Carmel said "could only have happened with a condition that pre-existed the 1968 accident and [therefore] could not have been caused by that accident." Second, Dr. Carmel cited the inherent high degree of stability of the thoracic segment of the spine, due to its joint configuration and support from the rib heads, noting that "it was unlikely that even a fracture described in [the] initial [X-ray] report could have resulted in an abnormal fusion." As further support for his conclusions, Dr. Carmel pointed out that two additional doctors (Glen Myer, M.D., and Dr. Kempe), who he said were internationally recognized neurosurgeons known for their expertise in spinal disorders, subsequently reviewed those X-ray films, observed consistent findings, and agreed with that impression. Dr. Carmel added that their collective feeling was that the bony defect observed in service was not necessarily associated with the automobile accident after service, and that, "[i]f the abnormalities seen at the T2 level on these x-rays were not related to the auto[mobile] accident, then it is very likely that they were congenital in origin, [meaning] this could not be a service related injury...and cannot reasonably be ascribed to the T2 radiological defect." In December 1998, in response to the IME opinion, Dr. Bash submitted an additional statement refuting the conclusions made against the claim. He provided a very fact specific and detailed explanation of why he believes the T2 fracture the veteran sustained in the automobile accident during service greatly enhanced the risk of him sustaining far more severe injury to his spine in the second automobile accident after service, in July 1972. Furthermore, Dr. Bash cited to other medical sources to support his opinion, and he discussed the relevancy of the evidence, virtually piece by piece, from the time the veteran entered the military until well after the latter spinal injury occurred. Dr. Bash indicated that it is his opinion that the whip lash type of injury the veteran sustained during service in December 1968 predisposed him, not only to the "Cervicobrachial syndrome" abnormality that was noted during his separation examination, but also that his T2 fracture injury in service is a "likely causative factor and increased his risk of having a more severe unusual cervical spine injury during his post service accident in 1972." Dr. Bash also made note of the fact that other qualified physicians, particularly Dr. Brix who was the veteran's primary care physician immediately after the 1972 accident-meaning he was well aware of the complexity of his medical circumstances and situation-had agreed with this conclusion. Lastly, Dr. Bash indicated that Dr. Carmel, while not supporting the claim, may not have had access to the entire record, inasmuch as he did not comment on either the 1968 examination (which showed the veteran was experiencing severe muscle spasms) following the whip lash injury or the "cervicobrachial syndrome" abnormality shown on the report of his service separation examination. Dr. Bash expressed his belief that that deserves mentioning, especially if considered along with the fact that Dr. Carmel offered no comments whatsoever on the professional opinion of Dr. Brix, thereby providing the necessary medical basis for granting the benefits requested. As noted above, several competent specialists (Drs. Brix, Mahaley, Shupeck, Beemer, and Bash) all have provided medical opinions that either wholly support pr suggest that there is a correlation between the severity of the spinal injury the veteran sustained after service, in the automobile accident in July 1972, and the T2 fracture that he sustained during service, in the automobile accident in December 1968. The only exceptions are the statement from Dr. Magee and the more recent IME opinion from Dr. Carmel, which incorporated, by reference, findings of other doctors (Drs. Myer and Kempe). Notwithstanding the fact that Dr. Carmel's opinion was obtained to resolve the dispositive question at issue in this case, and that such opinion is negative, the Board finds that, in totality, the opinions of the doctors who support the claim are as persuasive as the opinions of those that militate against the claim, particularly when Dr. Carmel's conclusions are considered in light of Dr. Bash's subsequent criticisms, to include that the medical question at issue is better addressed by specialists in neurosurgery, orthopedics and neuroradiology, rather than by a neurologist. Without addressing which medical specialty is the more appropriate, the Board finds that the evidence is at least in relative equipoise on the dispositive question at issue in this case. Thus, all reasonable doubt must be resolved in the veteran's favor, see 38 U.S.C.A. § 5107(b), and the Board must conclude that a grant of secondary service connection for the residuals of the injury he sustained in the automobile accident in July 1972 is warranted. ORDER Service connection for the residuals of the injury sustained in the automobile accident in July 1972, secondary to the service-connected T2 fracture, is granted. JACQUELINE E. MONROE Member, Board of Veterans' Appeals