Citation Nr: 0004162 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 95-35 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. W. Fabian, Counsel INTRODUCTION The veteran had active duty from August 1948 to May 1952. This matter comes to the Board of Veterans' Appeals (Board) from a July 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in which the RO denied entitlement to service connection for a cervical spine disorder and degenerative joint and disc disease of the lumbar spine, and denied a compensable rating for lumbosacral strain. The veteran perfected an appeal of that decision. In a March 1996 rating decision the RO granted service connection for degenerative joint and disc disease of the lumbar spine, and assigned a 40 percent disability rating for that disorder. In an April 1996 statement the veteran stated that he was satisfied with the grant of service connection and the disability rating assigned for the low back disorder, and the Board finds that those issues are no longer within the Board's purview. See Hamilton v. Brown, 4 Vet. App. 528 (1993)(en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (the Board is without jurisdiction to proceed on an issue if the veteran indicates that the appeal should not proceed). In the April 1996 statement the veteran also expressed disagreement with the effective date assigned for the 40 percent disability rating. He has not, however, been provided a statement of the case pertaining to that issue. See Tablazon v. Brown, 8 Vet. App. 359, 361 (1995) (the failure to provide a statement of the case following a notice of disagreement prevents the decision from becoming final); 38 C.F.R. § 19.26 (1999). This issue is, therefore, being remanded to the RO for the issuance of a statement of the case and to provide the veteran the opportunity to submit a substantive appeal. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.200 (1999). This case was previously before the Board in June 1997, at which time the Board determined that the preponderance of the evidence showed that the veteran's cervical spine disorder was not related to an in-service injury, and denied the claim of entitlement to service connection for that disorder. The veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (formerly the Court of Veterans Appeals) (Court), and in an April 1999 decision the Court vacated the Board's decision and remanded the case to the Board for additional development and re-adjudication in accordance with the Court's order. FINDING OF FACT The claim of entitlement to service connection for a cervical spine disorder is supported by competent evidence of a current medical diagnosis of disability, evidence of a cervical spine injury in service, and medical evidence of a nexus between the in-service injury and the current diagnosis. CONCLUSION OF LAW The claim of entitlement to service connection for a cervical spine disorder is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran's service medical records show that he was hospitalized in August 1950 for the treatment of asthma. A physical examination at that time was negative for any musculoskeletal complaints or findings. He was again hospitalized in October 1950 due to asthma, and at that time he reported having injured his back when the jeep in which he was riding was thrown into a ditch. He complained of frequent back pain and numbness in the left leg since the accident. The report of a physical examination during the hospitalization shows that he had no complaints or history of any stiffness, masses, injuries, or swelling of the neck, and he denied having received any treatment for the injury at the time it occurred. Physical examination failed to reveal any musculoskeletal abnormalities. He received treatment for low back pain, with radiation into the left leg, in November 1950, at which time he claimed to have been thrown out of the jeep during the accident. He made no complaints pertaining to the neck, and a physical examination again revealed no abnormalities. He also received treatment for low back pain in February, March, and July 1951, and January 1952, but did not report any cervical spine symptoms. Physical examinations in February 1951 and March 1952 showed no abnormalities of the spine. The February 1951 treatment record indicates that the jeep accident had occurred eight months previously. In May 1952 the veteran claimed entitlement to VA compensation benefits for asthma and back injuries. He made no reference to a neck or cervical spine injury. Private examination reports dated in May and September 1952 show that he had low back pain since having been thrown from a jeep in 1950. During a July 1952 VA examination he again reported having been thrown from a jeep in 1950, with resulting low back pain. He was hospitalized at a VA medical facility in October 1952 for the treatment of low back pain, and reported having been thrown from a jeep while in service. None of the above-referenced medical records make any reference to cervical spine complaints. The RO granted entitlement to service connection for lumbosacral strain in January 1954. During February 1958 and March 1963 VA examinations the veteran's only complaints were of respiratory problems and occasional sciatica. The report of the February 1958 examination shows that he had attended chiropractic school from 1953 to 1956. The report of an April 1966 VA examination shows that he continued to complain of low back pain with radiation into the left leg. No reference was made to any neck or cervical spine complaints, with the exception of a complaint of left upper back pain. Examination of the musculoskeletal system at that time was normal. VA treatment records indicate that in December 1987 the veteran sought treatment for his low back complaints, but he made no mention of neck or cervical problems. A November 1991 private medical report shows that, as a result of extensive diagnostic tests, his complaints of pain in multiple joints were attributed to chronic overuse or tendonitis, and no reference was made to a neck or cervical spine disorder. The veteran initially claimed entitlement to service connection for a cervical spine disorder in April 1993, at which time he asserted that he had injured his neck as well as his low back in the jeep injury in 1950. He stated that C1 subluxation resulted in concomitant tractionization, reticular formation involvement, over-facilitation, and spastic contracture of the spinal muscle structures, resulting in spinal distortion. He claimed to have neck and back pain, headaches, and asthma due to the spinal distortion. He also submitted several informational pamphlets and treatises outlining the chiropractic approach to the treatment of spinal disorders, to the effect that misalignment and subluxation of the vertebrae, specifically the C1 vertebra, caused musculoskeletal and neurological "distortions" throughout the body. The veteran also reported having attended chiropractic college, and having been a practicing chiropractor since 1956. He stated that he had been certified by the National Upper Cervical Chiropractic Association, Inc., for the previous 20 years. In support of his claim the veteran submitted a January 1992 report from another chiropractor, which indicates that he received treatment for recurring spinal injuries from 1967 to 1987, and that the original injury occurred in a motor vehicle accident in the mid-1950's while he was in service. The chiropractor submitted several charts documenting the spinal adjustments that the veteran received during this period of time. An additional report from the same chiropractor, dated in February 1996, indicates that the in-service injury caused cervical spine trauma, resulting in misalignment of the first cervical vertebra and causing spastic contracture of the entire spinal column. The chiropractor stated that the veteran had received an injury that caused the first cervical vertebrae to misalign or displace to the right of the occipital condyles of the skull. He stated that the misalignment of the first cervical vertebra caused a loss of function of the inhibitory control in the brain stem, resulting in increased tonus, or unilateral spastic contracture of the deep extensor musculature, causing a multitude of spinal-related symptoms and spinal degeneration. In support of his opinion he submitted a pamphlet explaining the effects of C1 subluxation on the spine. In conjunction with his claim for an increased rating for his service-connected low back disorder, the veteran was provided a VA examination in February 1995. The RO's request to the VA medical center (MC) for the examination shows that the examining physician was asked to provide an opinion on whether degenerative joint and disc disease of the lumbar spine, which diagnoses had been rendered, were related to the service-connected lumbosacral strain. The examiner was not asked to provide an opinion on the etiology of his cervical spine complaints. The report of the orthopedic examination shows that the veteran reported injuring his back and neck in an accident in 1950, at which time the jeep he was driving dropped into a hole, jamming him into the seat. The examiner did not report any clinical findings pertaining to the cervical spine, nor did he provide a diagnosis of a cervical spine disorder. An X-ray study of the cervical spine revealed mild C4-C5 spondylosis, with no compression fractures, malalignments, or neural foraminal narrowing. The examiner stated that the veteran had had back and left leg pain since the jeep accident, and that in his opinion the current impairments were directly related to the accident that occurred in 1950. In his September 1995 substantive appeal, the veteran provided what appears to be an alternative theory to the cause of his cervical spine disorder, which he had previously claimed was due to subluxation of the C1 vertebra during the jeep accident. He asserted that he had post-traumatic degenerative changes in his cervical spine due to an acceleration/deceleration (whiplash) injury that occurred during the accident. He also submitted a number of medical treatises dealing with traumatic and degenerative disorders of the joints, cervical spondylosis and disc degeneration due to trauma and chronic stress, whiplash injuries, the high incidence of cervical osteoarthritis and spondylosis becoming manifest years after acceleration/deceleration injuries, and the development of degenerative changes in the cervical spine. VA treatment records indicate that in November 1995 the veteran reported a 45-year history of low back pain, with some neck and intrascapular pain. A February 1996 report from an additional chiropractor indicates that the chiropractor remembered providing cervical spine treatment to the veteran from 1953 to 1956, while the veteran was in chiropractic college. The chiropractor also stated, however, that the records of treatment were not retained and that the nature and severity of the disorder for which treatment was provided could not be determined. During a February 1996 hearing the veteran testified that, in his opinion, the in-service injury resulted in traumatic degenerative changes in the cervical spine. He stated that throughout his chiropractic treatment the treatment was applied to his neck, because the pressure there caused the spastic contractures and distortion in his low back. He also stated that the figures shown in the chiropractic treatment records represented the X-ray measurements based on which his cervical spine was adjusted. He stated that he received chiropractic treatment when he was attending chiropractic college from 1953 to 1956, but that the records of that treatment were not available. He also asserted that degenerative changes could not be caused by normal "wear and tear" on a joint. In conjunction with the veteran's claim of entitlement to service connection for degenerative joint and disc disease of the lumbosacral spine as secondary to lumbosacral strain, in February 1996 the RO again asked the VAMC to provide the veteran an orthopedic examination. The RO asked the examiner to provide an opinion on the relationship, if any, between the veteran's service-connected lumbosacral strain and the current lumbosacral, thoracic, and cervical spine disorders. During the examination the veteran again reported that his back was injured during service when the jeep in which he was riding dropped into a hole, severely jarring his lower back. He reported having continuing back pain following his separation from service, for which he received chiropractic care. His complaints during the examination related to the low back, with radiation into the left leg, and the examiner performed a physical examination only of the low back. The examiner provided the opinion that the veteran's symptoms were related to the service-connected injury as described. The examiner did not provide an opinion pertaining specifically to the cervical spine. Based on the examination report, in a March 1996 rating decision the RO granted service connection for degenerative joint and disc disease of the lumbosacral spine. In April and December 1996 statements the veteran reported that he had incurred a whiplash, or acceleration/deceleration injury, at the time of the in-service jeep accident, and that he had back and cervical spine problems since then. He indicated that the whiplash injury was "not addressed" at the time he received treatment for his low back symptoms in service. He stated that the high incidence of osteoarthritis and spondylosis becoming manifest years after acceleration/deceleration injuries suggested a very strong causal relationship, especially when the disease was localized to one or two levels. He also stated that the cervical spine disorder was related to the same injury that caused his lumbosacral disorder. The Board notes that subsequent to its June 1997 vacated decision, the RO increased the disability rating for the veteran's low back disorder from 40 to 60 percent. In addition, he was found to be totally disabled based on individual unemployability due primarily to his service- connected low back disorder. II. Laws and Regulations The threshold question that must be resolved with regard to the claim is whether the veteran has presented evidence that the claim is well grounded. 38 U.S.C.A. § 5107(a); Epps v. Brown, 9 Vet. App. 341 (1996), aff'd, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 118 S.Ct. 2348 (1998). A well grounded claim is a plausible claim, meaning a claim that appears to be meritorious on its own or capable of substantiation. Epps, 126 F.3d at 1468. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). In order for a claim for service connection to be well grounded, there must be a medical diagnosis of a current disability, medical or lay evidence of the incurrence of a disease or injury in service, and medical evidence of a nexus between the in-service disease or injury and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Alternatively, the second and third elements can be satisfied by evidence showing that a disorder was noted during service or any applicable presumptive period, evidence of post- service continuity of symptomatology, and medical or, in some circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. In addition, if the claim for service connection pertains to a disease rather than the residuals of an injury, a well-grounded claim can be established by evidence showing a chronic disease in service or during any applicable presumptive period and present disability from that disease. See Savage v. Gober, 10 Vet. App. 488, 495-497 (1997); 38 C.F.R. § 3.303(b). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. Therefore, if the determinant issue is one of medical etiology or a medical diagnosis, competent medical evidence is generally required to make the claim well grounded. See Grottveit, 5 Vet. App. at 93. A lay person is, however, competent to provide evidence of an observable condition during and following service. Savage, 10 Vet. App. at 496. If the claimed disability relates to an observable disorder, lay evidence may be sufficient to show the incurrence of a disease or injury in service and continuity of the disorder following service. Medical evidence is required, however, to show a relationship between the current medical diagnosis and the continuing symptomatology. See Clyburn v. West, 12 Vet. App. 296 (1999). In determining whether the claim is well grounded, the evidence is generally presumed to be credible. See Arms v. West, 12 Vet. App. 188 (1999). III. Analysis The Board has reviewed the evidence of record and finds that the claim of entitlement to service connection for a cervical spine disorder is well grounded. The medical evidence shows that his cervical spine complaints were diagnosed as C4-C5 spondylosis in February 1995, which constitutes a medical diagnosis of current disability. In addition, the veteran has provided testimonial evidence of having incurred an injury to the cervical spine in service. Because the veteran is a medical professional, his opinion showing a nexus between the claimed in-service injury and the current medical diagnosis is sufficient to well ground the claim. Caluza, 7 Vet. App. at 506; see also Grottveit, 5 Vet. App. at 93. The Board finds, therefore, that the claim of entitlement to service connection for a cervical spine disorder is well grounded. For the purpose of determining whether the claim is well grounded, the veteran's statements are presumed to be credible. Arms, 12 Vet. App. at 188. In determining the substantive merits of the claim, however, that presumption no longer applies, and the Board must weigh the probative value of all of the evidence in determining whether service connection is warranted. Evans v. West, 12 Vet. App. 22 (1998). The veteran has, as a medical professional, provided the opinion that his current cervical spine disorder is related to the in-service injury. He stated that the jeep accident caused subluxation of the C1 vertebra, resulting in concomitant tractionization, reticular formation involvement, over-facilitation, and spastic contracture of the spinal muscle structures, causing spinal distortion and the lumbosacral and cervical spine symptoms. As an alternative, he stated that the 1950 jeep accident caused an acceleration/deceleration (whiplash) injury to the cervical spine, resulting in the degenerative changes documented in 1995. The veteran's service medical records are silent for any complaint or clinical finding pertaining to a neck or cervical spine disorder, although his complaints regarding low back symptomatology are clearly documented. No reference to a neck or cervical spine injury was made when he claimed compensation benefits in May 1952. Numerous private and VA medical examinations from May 1952 to April 1966 failed to reveal any complaints or clinical findings pertaining to a cervical spine disorder. The diagnosis of a cervical spine disorder was not documented prior to February 1995, at which time the VA examination resulted in the finding of mild C4-C5 spondylosis. Because of this record, the Board finds that additional development is warranted prior to adjudicating the substantive merits of the veteran's claim. ORDER The claim of entitlement to service connection for a cervical spine disorder is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for a cervical spine disorder is well grounded, VA has a duty to assist the veteran in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). As noted by the Court in its April 1999 decision, the VA examiner in March 1996 was asked to provide an opinion on the etiology of the veteran's cervical spine disorder, but did not do so. The Board finds, therefore, that an additional examination is required in order to obtain an objective medical opinion, based on the medical evidence and sound medical principles, on the relationship, if any, between the veteran's C4-C5 spondylosis and an in-service disease or injury. See Caffrey v. Brown, 6 Vet. App. 377 (1994) (the duty to assist requires VA to provide a thorough and contemporaneous medical examination). As previously stated, the veteran's appeal of the effective date assigned for the 40 percent rating for the low back disorder is being remanded to the RO for appellate development. To ensure that VA has met its duty to assist the veteran in developing the facts pertinent to his claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should obtain the names and addresses of all medical care providers, inpatient and outpatient, VA and private, who treated the veteran for a cervical spine disorder since November 1995. After securing any necessary release, the RO should obtain copies of such records that are not in file. 2. The veteran should be afforded a VA examination by an orthopedic specialist in order to obtain an opinion on the etiology of the C4-C5 spondylosis. The claims file and a copy of this remand MUST be made available to and be reviewed by the examiner in conjunction with the examination. The examination should include any diagnostic tests or studies, including X-ray studies, that are deemed necessary for an accurate assessment. The orthopedist should conduct a thorough examination of the cervical spine and provide a diagnosis for any pathology found. The orthopedist should also provide an opinion, based on the available evidence and sound medical principles, on whether it is at least as likely as not that the spondylosis is etiologically related to the jeep accident that occurred in 1950. Specifically, the orthopedist should provide an opinion on whether the jeep accident resulted in subluxation of the C1 vertebra and spastic contracture of the spinal muscle structures, causing spinal distortion and the cervical spine disorder. The orthopedist should also provide an opinion on whether the jeep accident caused an acceleration/deceleration (whiplash) injury that resulted in the spondylosis diagnosed in 1995. The orthopedist should provide the complete rationale, including a reference to any relevant clinical findings, for his/her opinion. 4. The RO should then review the claims file to ensure that all of the above requested development has been completed. In particular, the RO should ensure that the requested examination and opinions are in complete compliance with the directives of this remand and, if they are not, the RO should take corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After undertaking any additional development deemed appropriate in addition to that requested above, the RO should re-adjudicate the issue of entitlement to service connection for a cervical spine disorder. If any benefit requested on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and be given the opportunity to respond. 6. After undertaking any development deemed appropriate on the issue of entitlement to an earlier effective date for the assignment of the 40 percent disability rating for the low back disorder, the RO should re-adjudicate that issue. If entitlement to the claimed entitlement date remains denied, the veteran and his representative should be provided a statement of the case pertaining to that issue and be given the opportunity to submit a substantive appeal. The case should be returned to the Board for consideration of any issues that remain in a denied status and for which a valid substantive appeal has been submitted. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The examination requested in this remand is necessary to evaluate the veteran's claim. A failure without good cause to report for scheduled examinations could result in the claim being evaluated on the basis of the evidence currently of record or denied. 38 C.F.R. § 3.655 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Mark D. Hindin Member, Board of Veterans' Appeals