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 CONCLUSIONI. 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.
