Veterans Medical Advisor

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                         Case from Bureau of Veterans Appeals

Dr. Bash is a veteran of


Citation Nr: 0714044

Decision Date: 05/11/07 | Archive Date: 05/25/07

DOCKET NO. 94-33 056

On appeal from the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina

THE ISSUE

Entitlement to service connection for residuals of a cervical spine injury.

REPRESENTATION

Appellant represented by: Michael E. Wildhaber, Attorney

WITNESSES AT HEARING ON APPEAL

Appellant and a medical consultant

ATTORNEY FOR THE BOARD

K. J. Alibrando, Counsel

INTRODUCTION

The veteran had active service from March 1968 to September 1970.

This appeal arises from a July 1993 rating action that denied service connection for residuals of a cervical spine injury. A Notice of Disagreement was received in September 1993, and a Statement of the Case (SOC) was issued in December 1993. A Substantive Appeal was received in June 1994.

In October 1994, the veteran and a medical consultant testified during hearing before a hearing officer at the RO; a transcript of the hearing is of record.

In January 1997, the veteran testified during a hearing before the undersigned Veterans Law Judge in Washington, D.C.; a transcript of that hearing also is of record.

In April 1997, the Board denied service connection for residuals of a cervical spine injury. The veteran appealed the Board's decision to the United States Court of Veterans Appeals (known as the United States Court of Appeals for Veterans Claims since March 1999) (Court)). In July 1998, the appellant and VA Secretary filed a Joint Motion to Vacate and Remand the Board Decision (Joint Motion). By August 1998 Order, the Court granted the Joint Motion, vacated the April 1997 Board decision, and remanded the case to the Board for further action.

In February 1999, the Board remanded this case to the RO for further development of the evidence and for due process development. After accomplishing the requested action, the RO continued the denial of the claim on appeal (as reflected in a June 2001 supplemental SOC (SSOC)) and returned this matter to the Board.

In March 2002, the Board again remanded this case to the RO for further development of the evidence and for due process development. After accomplishing the requested action, the RO continued the denial of the claim (as reflected in a September 2002 SSOC), and returned the matter to the Board for further appellate consideration.

In August 2003, the Board denied service connection for residuals of a cervical spine injury. The veteran appealed the Board's decision to the Court. By a January 2006 Memorandum Decision and Order, the Court vacated the August 2003 Board decision, and remanded the case to the Board for further action.

In October 2006, the Board requested an expert medical opinion via the Veterans Health Administration (VHA); the Board notified the appellant of this development in October 2006. In November 2006, the Board received the requested opinion. In December 2006, the Board forwarded a copy of the medical opinion obtained to the appellant and his attorney, notifying them of a 60-day period for response. In a January 2007, the appellant's attorney submitted additional argument in response to the opinion.

FINDING OF FACT

1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished.

2. The veteran sustained a spine injury during a helicopter crash in service, he has current degenerative changes of the cervical spine, and the medical opinion evidence-on the question of whether the current cervical spine disability is medically related to the in-service spine injury-is in relative equipoise.

CONCLUSION OF LAW

Resolving all reasonable doubt in the veteran's favor, the criteria for service connection for degenerative changes of the cervical spine, residual to in-service spine injury, are met. 38 U.S.C.A. §§ 1110, 5103A, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2006).

REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 and Supp. 2006) include enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006).

Considering the claim on appeal in light of the above, and in view of the Board's favorable disposition of the claim, the Board finds that all notification and development action needed to fairly adjudicate the claim has been accomplished.

II. Background

Service medical records reflect that the veteran was seen with a 1-day history of back trouble in early November 1969. Examination revealed right paraspinal muscle spasm with resultant right scoliosis. There was no history of trauma. There was no radiating pain, which was localized at L-3. A week later, the veteran was seen with complaints of low back and thoracic spinal pain following an aircraft accident. Orthopedic examination and X-rays were negative. The neck and spine were normal on September 1970 separation examination.

Post service, on May 1971 VA examination of the neck and spine, there was no abnormality of the neck, and the veteran accomplished all motions without difficulty. He could touch his toes.

In a statement of July 1974, the veteran stated that he had been unable to report for a VA examination scheduled in April 1974 because he had been in a motorcycle accident.

On December 1978 examination by a private chiropractor, the veteran complained of neck pain and stiffness and back pain. Current cervical spine X-rays revealed cervical hypolordosis. There was transverse hypertrophy at C-6 on the right, and right cervical thoracic scoliosis. The diagnosis was chronic paraspinal myofascitis, and neuralgia of the thoracic and lumbar spine.

By rating action of October 1979, the RO granted service connection for a compression fracture of the dorsal spine as a residual of an in-service back injury during a helicopter accident.

A December 1982 private chiropractic record shows that the veteran was seen after he rolled-over his motor vehicle and his head struck the windshield. He complained of pain and difficult motion of the neck and low back.

September 1991 VA outpatient records indicated the veteran's 2-month history of neck pain. Cervical spine X-rays revealed marked degenerative joint and disc disease at the C4-C5 level with abnormality of the curvature in this area. No acute pathology was noted.

On October 1991 VA orthopedic examination, the veteran's complaints included neck and back pain. There were no findings pertaining to the cervical spine.

In an October 1991 statement, B. Tosky, a chiropractor, stated that he first saw the veteran in April 1991 for treatment of injuries sustained in a March 1991 automobile accident, the chief symptoms of which included severe head and upper back pain, a stiff and painful neck, and mid-back pain. X-rays revealed posterior ligamentous injury to several cervical vertebra, complete loss of the normal cervical lordotic curve, and osteophytic degeneration of the C-4 vertebra with C-4 disc degeneration. The diagnosis was moderate hyperflexion (whiplash) injury/sprain to the cervical spine, complicated by irritation to the C-3, 4, 5, and 6 nerve roots along with paravertebral muscle spasm.

On December 1991 VA outpatient orthopedic examination, the veteran was noted to have sustained a compression fracture in a helicopter crash, and to have been re-injured in a 2-car automobile crash. Current X-rays revealed a fairly normal cervical spine (interspaces, vertebral height, etc.), which was straightened.

In a March 1992 statement, Mr. Tosky stated that he had reviewed 1972 (sic) X-rays and that the veteran had sustained an intensely traumatic injury to his cervical spine. He opined that the loss of the normal lordotic curve was consistent with what was seen in a severe acceleration- deceleration injury such as a fall, and that the misalignment of atlas or axis was also symptomatic of such forceful cervical sprain.

In February 1994, the veteran was hospitalized at the North Carolina Baptist Hospital for treatment of a Type II odontoid fracture sustained in a motor vehicle accident a few days earlier. A history of a motor vehicle accident 3 years ago with neck sprain was noted, with no residuals. During his hospital course, surgery was performed to internally fix the odontoid fracture. X-rays of the cervical spine revealed loss of disc space, end plate sclerosis, and osteophyte formation at the C4-5 level. There was straightening of the normal cervical lordosis. The veteran was discharged from the hospital in stable condition.

During the October 1994 RO hearing, the veteran testified that he currently suffered from a cervical spine disorder as a result of compression of cervical vertebra incurred during a helicopter accident in service in 1969, and that his contentions were supported by competent medical opinions.

On November 1994 VA orthopedic examination, the veteran gave a history of a crushed vertebra in his neck after a helicopter crash in 1969. After further questioning of the veteran, the examiner felt that the fracture involved the veteran's thoracic spine, not the neck. Current cervical spine X-rays revealed two bone screws in the midline, presumably extending from the bodies of the 2nd cervical vertebra into the 1st. There was evidence of narrowing of the C4-5 intervertebral disc space with marginal spurring, compatible with disc pathology. After examination, the diagnoses were status post fracture of the dorsal spine anterior wedge without neurological deficit by history, secondary to helicopter accident; and history of cervical spine degenerative arthritis with no evidence of significant limitation of range of motion or neurological deficit. After careful review of the veteran's file, the examiner opined that the veteran's cervical spine pathology was not related to the injury he sustained to the thoracic spine, at which time an anterior wedge compression fracture occurred, and which thoracic spine disorder was service connected.

In a January 1995 statement, W. Cox, a chiropractor, stated that, after comparing the veteran's February 1994 X-rays with those of January 1975, he found that the veteran's neck condition had worsened dramatically, with increased kyphosis and bone and disc degeneration. Mr. Cox opined that the cause of the veteran's condition was a 1969 in-service helicopter accident and the injuries suffered at that time.

In a May 1995 addendum to the November 1994 VA examination report, the same VA physician stated that he had reviewed the veteran's claims file and undated cervical spine X-rays from a chiropractor. The VA physician noted that the latter X- rays showed no significant cervical spine pathology. After a careful review of the evidence, the VA doctor opined that the veteran's cervical spine pathology was not related to the anterior wedge compression fracture he sustained to the thoracic spine, which disability was service connected. The VA examiner also noted 1994 North Carolina Baptist Hospital records indicating that trauma to the veteran's cervical spine occurred in a February 1994 motor vehicle accident, and that he underwent odontoid screw fixation at that time. The VA physician concluded that the veteran's cervical spine problem occurred in 1994 and was in no way related to his service- connected injury many years ago.

During the January 1997 Board hearing, the veteran testified that he currently suffered from a cervical spine disorder as a result of a helicopter accident in service in 1969, and that his contentions were supported by competent medical opinions. He reported that he re-injured his back and neck in a motor vehicle accident in 1994.

On June 1999 VA orthopedic examination, the examiner reviewed the claims file and the February 1999 Board Remand. The veteran gave a history of the onset of his spine disabilities during a 1969 helicopter accident. The examiner noted that the veteran was subsequently found to have had a compression fracture of the 7th thoracic vertebral body, but that his records did not indicate the extent of the examination or any findings related to the neck at that time. The examiner also noted a fracture of the odontoid process of the neck in an automobile accident in February 1994, with operative repair and screw fixation at that time. After current examination and cervical spine X-rays, the diagnoses included post- operative healed odontoid fracture of the cervical spine; history of cervical degenerative disc disease with X-ray changes reported and present on current examination; and healed, asymptomatic compression fracture of the 7th thoracic vertebral body.

The examiner opined that it was not likely that the current cervical spine findings were related to the veteran's military service or to his service-connected thoracic spine disorder, or that the service-connected thoracic compression fracture aggravated any current cervical symptoms. The reason for these conclusions was that there was no report of complaints and/or examinations to any extent of any severity of cervical injury in the veteran's in-service helicopter crash which would be likely to be manifest by the present findings many years later. The examiner noted that the injury to the cervical odontoid process clearly occurred in a later motor vehicle accident. Although there was some possibility that cervical degenerative disc problems could have started during the veteran's military service, the doctor did not believe that there was any evidence of record to sustain such an opinion, noting that the degree of cervical degeneration seen in the veteran was as often as not seen in middle-aged men without the history of any antecedent severe injury.

In an April 2000 addendum to the June 1999 VA examination report, the same VA physician stated that he had reviewed additional medical evidence that had been introduced into the veteran's claims file subsequent to the latter 1999 examination, as well as other records in the claims file, and that the additional evidence did not alter the diagnoses or opinions expressed in the 1999 report.

In a May 2001 statement, C. Bash, M.D., stated that he had reviewed the veteran's claims file including the service and post-service medical records, VA rating actions, SOC, and SSOCs, the veteran's hearing testimony, VA examination reports, and medical literature, and opined that the veteran's in-service cervical spine injury in a helicopter crash caused his current cervical spine pathology, advanced degenerative arthritis. Dr. Bash disagreed with the May 1995 VA examiner's opinion, on the grounds that the veteran clearly had a pre-1994 cervical spine injury and disability, citing Mr. Tosky's March 1992 report. Dr. Bash noted that the veteran's current cervical spine problems were located in the lower spine, with the most severe disease at the C4-5 level, whereas the 1994 accident caused a fracture at a different level, i.e., the odontoid, located at the C-2 level. Dr. Bash further noted that the May 1995 VA examiner failed to comment about the clinical findings pertaining to the neck on a December 1978 examination, in Mr. Tosky's March 1992 report, and in Mr. Cox's January 1995 report.

To the contrary, Dr. Bash opined that it was clear from the record that the veteran sustained a severe spine injury in the 1969 helicopter crash, and that his whole spine was affected by this crash, as it was an axial-type load that caused the thoracic spine fracture which was not initially diagnosed by military medical authorities. In support of this opinion, Dr. Bash quoted from medical literature, to the effect that injuries to the spine early in life lead to advanced spine degenerative disease; at the onset, tearing of ligaments and subluxation are manifested by local symptoms of back pain accentuated by the motion which stretches the ligaments, and eventually symptoms of localized degenerative arthritis are superimposed. Dr. Bash further opined that the veteran's current cervical spine problems were caused by his in-service helicopter crash with spine injury, and stated that this opinion was based on the 1978 cervical spine X-ray findings, the mechanism of injury, medical assessments, and the veteran's testimony, and was in agreement with both chiropractic opinions of Mr. Tosky and Mr. Cox. Dr. Bash stated that he discounted the May 1995 VA examiner's opinion because he did not think that VA physician fully reviewed the record, and he felt that VA physician missed some very pertinent facts, and did not comment on the Tosky or Cox chiropractic opinions or the evidence of the veteran's cervical spine injury prior to 1994.

On August 2002 VA orthopedic examination, the physician stated that he reviewed the veteran's claims file and the March 2002 Board Remand prior to examining the veteran. The examiner reviewed the veteran's military and medical history, including a late-1960s helicopter accident, the mid-1970s finding of a compression fracture of the 7th thoracic vertebral body, chiropractic treatment since the mid-1970s, and a fracture of the cervical spine odontoid process in a February 1994 automobile accident. The VA examiner noted a chiropractor's opinion that 1970s cervical spine X-rays showed degenerative changes, but that after a current review of those 1975 X-rays [the Board notes that the veteran brought to the current examination the original X-rays of his cervical spine taken at the Gonstead Chiropractic Clinic in January 1975], a VA radiologist saw no such changes. The radiologist noted that 1979 VA X-rays showed a compression fracture at the T-7 level, and 1994 VA X-rays clearly showed cervical degenerative changes. After current examination, the diagnoses were thoracic spine degenerative joint disease; status post T-7 fracture with residuals; and status post fracture of the odontoid process of C-2 with degenerative changes of the neck. The VA physician opined that the veteran's cervical spine disease was not caused by the late 1960s helicopter accident, or caused or aggravated by the dorsal spine fracture. The reason for this conclusion was that a current VA radiologist's review of 1975 X-rays showed no evidence of any cervical degenerative changes therein. The VA examiner noted that this opinion was in disagreement with Dr. Bash's opinion and Mr. Cox's chiropractic report, and he could not explain why the latter 2 individuals saw degenerative changes in 1975 where a VA physician/radiologist saw none. As a result, VA physician concluded that there was no evidence that the in-service helicopter accident, which resulted in the veteran's thoracic spine problem, resulted in any way in his cervical spine problems.

In a June 2003 statement, Dr. Bash stated that he re-reviewed the veteran's medical records in this case, to include 1975, 1994, and 2001 X-rays and the August 2002 VA orthopedic examination report, and opined that the veteran's 1969 in- service helicopter accident injured his cervical spine and led to degenerative changes therein, and that these changes had worsened over time and caused his current neurological signs and symptoms. He asserted that this opinion was consistent with those of Messrs. Cox and Tosky, and that nothing in the medical record since his last review would alter that opinion. After reviewing January 1975 X-rays of the veteran's cervical spine, Dr. Bash agreed with the August 2002 VA radiologist's opinion that they showed no significant bony changes. He also opined that the longstanding, slowly progressive degenerative changes at the C4-5 level shown on 1994 X-rays were caused by the veteran's 1969 in-service helicopter accident, as those type of changes could absolutely not have been initially caused by an acute 1994 automobile accident, because the time interval was too short. He also opined that the C-4-5 pathology also could not have been caused by the veteran's 1974 motorcycle accident, because he only injured his leg therein. Dr. Bash discounted the probative value of the August 2002 VA examiner's opinions because he was not a radiologist himself, and because he relied upon the opinion of an unnamed radiologist who failed to provide a written report for the record and comment on the significance of the veteran's C4-5 degenerative changes, on how those changes were likely developed, on what likely caused those changes to occur, and on how those changes related to the negative 1975 X-rays and the veteran's medical history in reaching his conclusions.

In November 2006, upon request by the Board, a VA Orthopedic Surgeon submitted a VHA medical opinion regarding the etiology of the veteran's cervical spine disability. The physician indicated that the veteran's cervical spine pathology consists of degenerative changes of C-4, 5 and a previous odontoid fracture fixed with bone screws. It was indicated that the degenerative changes are chronic, the odontoid fracture healed. It was concluded that those findings are not related to any incident in the veteran's military service. Both findings onset occurred after the veteran's military service. It was concluded that therefore, no present cervical spine pathology is due to or related to veteran's military service, including his helicopter crash in 1969. The physician also indicated that the records did not indicate any cervical spine pathology prior to the veteran's military service. It was noted that the compression fracture of T-7 was a result of the veteran's helicopter crash in 1969. The physician indicated that the fracture healed in a few weeks and was an isolated injury. It was indicated that the injury to T-7 body in no way affected the cervical spine and it was concluded that the compression fracture of T-7 in 1969 was not related to the cervical spine pathology present today. The physician indicated that the conclusions were reached after reviewing the veteran's medical records involving the 1969 helicopter crash and subsequent motor vehicle accidents in 1974, 1982, 1991 and 1994. It was also indicated that the opinions by the VA and C. Bash, M.D. and chiropractors B. Tosky and W. Cox were also reviewed. The physician stated that he was not aware of a case of a thoracic spine compression fracture as an isolated injury having any short or long term residual pathology on the remaining spinal column.

III. Analysis

Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Such a determination requires a finding of a current disability that is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Where a veteran served continuously for 90 days or more during a period of war, and arthritis becomes manifest to a degree of 10 percent within 1 year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Considering the totality of the evidence, to include the competing medical opinions, the Board finds that, with application of the benefit-of-the-doubt doctrine, the criteria for service connection are met.

In this case, although the record demonstrates an in-service dorsal spine injury associated with an in-service helicopter crash, no cervical injury or disability was actually documented in service, and no such disability was medically shown until years after service. Moreover, the record reflects competing opinions on the question of whether there exists a medical relationship, or nexus, between current degenerative changes of the cervical spine and service. The Board finds, however, that when the nexus opinions are closely examined, and considered in light of the other evidence of record, the opinions are, at least, evenly balanced.

First addressing the statements of two chiropractors, in a March 1992 statement, Mr. Tosky noted that the veteran sustained a cervical spine injury consistent with a fall, but did not clearly relate the current cervical spine disability to the in-service injury. In the January 1995 statement, Mr. Cox indicated that he compared January 1975 and February 1994 x-rays and opined that the veteran's cervical spine disability was caused by the in-service injury and the injuries suffered at that time. Mr. Cox's statement tends to provide some positive evidence in support of the veteran's claim, even though he is not a medical doctor.

Specifically as regards the medical opinion evidence, the Board notes that, weighing against the claim, as indicated above, are the subsequent opinions rendered by VA physicians in November 1994, June 1999 and August 2002. Each VA examiner reviewed the veteran's claims file prior to rendering an opinion. Each VA examiner found that the veteran's cervical spine disability was not related to his dorsal spine injury in service and provided a rationale for each opinion (although the examiners did not explicitly address contrary opinions)

By contrast, the record contains the May 2001 opinion of Dr. Bash in which he also indicated that claims file was reviewed, including the service and post-service medical records and the VA examination reports. Dr. Bash concluded that the veteran sustained a severe spine injury in the 1969 helicopter crash in service, and that his whole spine was affected by this crash-a fact which the Board finds is not clearly supported by the contemporaneous record. Dr. Bash concluded that the veteran's current cervical spine degenerative changes are caused by the in-service injury. He provided a rationale for his conclusion, including discussion of the favorable opinions of the two chiropractors, as well as the unfavorable VA medical opinions. In a June 2003 statement, Dr. Bash indicated that he re-reviewed the veteran's medical records, including x-ray reports and the August 2002 VA orthopedic examination report and concluded that the in-service injury included injury to the cervical spine and led to degenerative changes. Dr. Bash included discussion of the November 2002 VA examiner's opinion and provided rationale to support his disagreement with that opinion.

Also weighing against the claim is the November 2005 VHA opinion by physician that indicated that the claims file had been reviewed, and concluded that the compression fracture of T-7 in 1969 was not related to the cervical spine pathology currently present. The physician acknowledged the opinions of Dr. Bash and Mr. Tosky and Mr. Cox-even though he did not expressly provide any rationale for his apparent disagreement with their conclusions. The physician noted that he was not aware of a case of a thoracic spine compression fracture as an isolated injury having any short or long term residual pathology on the remaining spinal column.

Thus, as indicated above, there is medical opinion evidence both for and against the claim based on consideration of the veteran's documented medical history and assertions, and supported by stated rationale-although there also are positive and negative aspects of each opinion, as indicated. Nonetheless, when considered collectively, these opinions tend to indicate that there is as likely as not an etiological relationship between the injury in service and current cervical spine disability.

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because an approximate balance of positive and negative evidence which does satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Given the totality of the evidence, to include medical opinion evidence addressed above, and resolving all reasonable doubt on the question of medical nexus in the appellant's favor, the Board finds that the criteria for service connection for degenerative changes of the cervical spine, residual to in-service spine injury, are met.

ORDER

Service connection for degenerative changes of the cervical spine, residual to in-service spine injury, is granted.




JACQUELINE E. MONROE

Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

drbash@doctor.com

______________________

Craig N. Bash M.D., M.B.A.

Neuro-Radiologist and Associate Professor

Uniformed Services School of Medicine

NPI/UPIN-1225123318

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