Citation Nr: 0003263 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 96-23 698A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for neck disability. REPRESENTATION Appellant represented by: Jim A. Bumgardner, Attorney ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran had service between October 1970 and July 1981. He reportedly had several periods of absence without leave, including a period from June 1977 to May 1981. His service was terminated in 1981 by an other than honorable discharge. The regional office has held that his service from October 1970 to October 1973 was under conditions other than dishonorable. An appeal has been taken from a June 1994 rating action by the regional office denying entitlement to service connection for a neck disability. The case was initially before the Board of Veterans' Appeals (Board) in April 1998, when it was remanded for further development. In September 1999, the regional office continued the prior denial. The case is again before the Board for further appellate consideration. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office to the extent possible. 2. A neck disability was not demonstrated during the veteran's military service. 3. Neck disabilities, including degenerative disc disease and degenerative arthritis, were initially medically demonstrated many years after the veteran's separation from military service and have not been shown to be related to any incident in service or to be otherwise of service origin. CONCLUSION OF LAW A neck disability was not incurred in or aggravated by the veteran's military service, and degenerative arthritis of the cervical spine may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that it has found the veteran's claim to be "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, the Board finds that he has presented a claim that is plausible. The Board is also satisfied that all relevant facts regarding the claim have been properly developed to the extent possible. In this regard, pursuant to the Board remand, the regional office contacted the service department on several occasions in order to obtain records reflecting the number of parachute jumps that the veteran made while on active duty. However, the service department did not have records reflecting that information. The regional office also wrote to the veteran and his representative requesting medical records showing treatment immediately following a 1991 on-the-job injury and records of any award of workmen's compensation based on the injury. However, no response was received. Accordingly, the Board will base its decision on the evidence of record. Background The veteran's service medical records do not reflect any complaints or findings regarding a neck disability. His service records indicate that he was awarded the Parachute Badge prior to September 1972. The veteran's initial claim for VA disability benefits was submitted in November 1993. The regional office thereafter received a number of private medical records reflecting that the veteran was seen in early 1991 after sustaining an accident at work, when he fell striking his shoulders and the back of his head. Various findings were recorded. Cervical spine films showed some mild degenerative changes. In July 1991, the veteran had surgery for a C5-C6 herniated disc with right C6 radiculopathy. He later had additional surgery for cervical spine problems. In a May 1994 statement, Thomas A. Bergman, M.D., indicated that he had known the veteran for about 3 or 4 years and that the veteran had an extreme amount of spondylitic arthritic problems in his cervical spine. He had required a total of three surgeries for decompression of the spinal cord. Dr. Bergman indicated that the degree of arthritic changes in the veteran's cervical spine was very severe and much greater than he expected for a man of the veteran's age. He noted that the veteran had been a paratrooper during service and had made a number of jumps. He indicated that he thought it likely that the parachuting had contributed to the veteran's arthritic changes. The veteran was afforded a VA examination later in May 1994. It was indicated that he had evidence of a right C5 radiculopathy. The examiner noted that the veteran had been a paratrooper and had undergone many jumps in service. However, he indicated that many other paratroopers had done as many jumps and had not suffered significant degenerative changes of the spine. He also indicated that there were people who were not paratroopers who had significant degenerative changes of their spine. A November 1995 joint statement by Jason Reed, M.D., and Edward Kraus, M.D., was to the effect that it was their "suspicion" that the veteran's paratrooper activities had contributed to his cervical spondylitic disease. During the course of a hearing on appeal conducted in February 1996, the veteran related that he had made many jumps during service and had injured his neck as well as his back. In February 1999, a VA physician indicated that the medical records of the veteran showed repeated notes about marked pain without any specific localization given. He stated that only one note of 1996 referred to "neck pain." He related that, otherwise, there were only requests for pain medication listed on his claimed visits. The physician indicated that a review of the Army medical records in the claims file did not show any notation of injuries suffered in relation to parachute jumping, and no reference to any treatment for a neck injury could be found. He indicated that only one note in 1977 mentioned a low back injury following a parachute jump. The physician further indicated that, in checking the medical history of the veteran, his neck injury dated back to a fall at work in 1990 or 1991, for which he was referred to a worker's compensation doctor. This eventually led to neck surgery by Dr. Bergman. The physician indicated that the medical history furnished by Dr. Bergman only referred to the accident at work in 1991 and that apparently nothing was said about any neck injury during or related to parachute jumping. The physician stated that, in summary, there seemed to be no basis for a claim due to a neck injury suffered during the veteran's parachuting jumping in military service. Analysis 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. Where a veteran served ninety (90) days or more during a period of war and degenerative arthritis becomes manifest to a degree of 10 percent within one year from 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. In this case, the veteran's service medical records do not reflect any complaints or findings regarding a neck disability. Neck disabilities, including degenerative disc disease and degenerative arthritis, were initially medically demonstrated many years following the veteran's separation from service. Indeed, his neck disabilities followed a 1991 accident sustained by the veteran at work, when he fell striking his shoulders and the back of his head. The veteran had surgery on several occasions for his cervical spine problems. The veteran has maintained that he made many parachute jumps during service and injured his neck as well as his back. In this regard, his service records indicate that he was awarded the Parachute Badge prior to September 1972. The number of parachute jumps he made during service cannot be determined. There is of record a May 1994 statement by Dr. Bergman, who had been treating the veteran for 3 or 4 years and who indicated that he thought it likely that the parachuting had contributed to the veteran's cervical arthritic changes. There was also a November 1995 joint statement by two physicians who indicated that the veteran's paratrooper activities had possibly contributed to his cervical spondylitic disease. The record discloses, however, that, when the veteran was examined by VA in May 1994, the examiner indicated that there were many paratroopers who had had many jumps and had not suffered significant degenerative changes of the spine. The examiner also indicated that there were individuals who were not paratroopers who had significant degenerative changes of their spine. Further, in February 1999, the veteran's records were reviewed by another VA physician, who noted that the veteran's service medical records did not refer to any treatment for a neck injury and that, according to the veteran's medical history, his neck injury dated to a fall at work in 1991 that eventually led to neck surgery. The physician noted that apparently nothing was said about any neck injury during or related to parachute jumping. The physician concluded that there was no basis for a claim due to a neck injury suffered during parachute jumping while in service. In view of the lack of any reference to a neck injury or disability in the veteran's service medical records and in view of the onset of neck problems following an on-the-job accident in 1991, together with the opinions expressed by the VA physicians in May 1994 and February 1999, the Board concludes that service connection for a neck disability is not warranted. The Board observes that the opinion of the VA physician in February 1999 was predicated on a review of the veteran's medical chart and military record, as distinguished from the opinions in favor of the veteran's claim, which were based principally on history furnished by the veteran and, in the case of Drs. Reed and Kraus, were couched in the language of speculation. Service connection may not be based on a recourse to pure speculation or even remote possibility. See 38 C.F.R. § 3.102 (1999). By contrast, an opinion based on a review of the chart is entitled to far greater weight than an opinion that is not. See Wilson v. Derwinski, 2 Vet. App. 16, 20-21 (1991) (an opinion relating a current disability to service has more probative value when it takes into account the records of prior medical treatment so that the opinion is a fully informed one); Corry v. Derwinski, 3 Vet. App. 231, 234 (1992) (Board has a plausible basis to reject a physician's "conjecture" that a disability was acquired as a result of service where relevant treatment reports dating back a number of years were not mentioned by the physician rendering the opinion). Accordingly, the Board finds that the preponderance of the evidence is against a material finding that the veteran's current neck disability either developed during service or as a result of any incident in service, including parachute jumping, or that, in the case of degenerative arthritis, became manifest to the required degree within one year following the veteran's separation from military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. It follows that the claim of entitlement to service connection for a neck disability, however classified, must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER Service connection for neck disability is denied. WILLIAM W. BERG Acting Member, Board of Veterans' Appeals