BVA9506522 DOCKET NO. 92-52 861 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Service connection for a paracervical muscle strain, claimed as cervical spine disorder. 2. Service connection for a lumbar spine disorder. 3. Service connection for a left arm disorder. 4. Service connection for headaches with dizziness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William L. Pine, Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from May 28, 1990, to June 28, 1990. The instant appeal is from the Department of Veterans Affairs (VA) Regional Office (RO) rating decision of April 1991 denying the claims now at issue. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that her current disabilities result from aggravation in ACDUTRA of injuries sustained in a motor vehicle accident (MVA) several days prior to reporting for training. She argues that she sustained acute injuries in the MVA that became chronic during ACDUTRA and which would not have but for being compelled to engage in strenuous physical exercise in basic training. Her representative avers that she may have been in travel status at the time of the MVA. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that service connection is warranted for paracervical muscle strain, including left trapezius strain, and for headaches with dizziness, but not for a left arm disorder or for a lumbar spine disorder. FINDINGS OF FACT 1. The appellant entered active duty for training on May 28, 1990. 2. The appellant sustained cervical and back strain and contusion of the left leg without skeletal injury or loss of consciousness in a motor vehicle accident on May 25, 1990. 3. The appellant was not proceeding directly to active duty for training at the time of the accident. 4. The appellant complained of pain in the neck, left shoulder and back pain with reduced ranges of motion due to pain on May 30, 1990, also of headaches on June 6, 1990, and of severe headaches on June 8, 1990. 5. The appellant was discharged from service with a diagnosis of cervical strain and a finding by an Entrance Physical Standards Board (EPSB) that she did not meet the medical procurement standards due to condition existing prior to entrance and not aggravated by service. 6. The appellant currently has strain of the cervical paraspinal muscles including the left trapezius muscle and headaches with dizziness resulting from the motor vehicle accident prior to entrance into ACDUTRA, each of which increased in severity during ACDUTRA. 7. There was no increase in disability of the lumbar spine or of a left arm disorder during ACDUTRA. CONCLUSIONS OF LAW 1. The appellant was not on active duty for training at the time of her May 25, 1990, motor vehicle accident. 38 C.F.R. § 3.6(e) (1994). 2. A left paracervical muscle strain, including left trapezius muscle, was aggravated in line of duty during active duty for training. 38 U.S.C.A. §§ 101(24), 106, 1131, 1132, 1153 (West 1991); 38 C.F.R. §§ 3.304(b), 3.306(a), (b) (1994). 3. A lumbar spine disorder was not incurred or aggravated in line of duty during active duty for training. 38 U.S.C.A. §§ 101(24), 106, 1131, 1132, 1153 (West 1991); 38 C.F.R. §§ 3.304(b), 3.306(a), (b) (1994). 4. A left arm disorder was not aggravated in line of duty during active duty for training. 38 U.S.C.A. §§ 101(24), 106, 1131, 1132, 1153 (West 1991); 38 C.F.R. §§ 3.304(b), 3.306(a), (b) (1994). 5. A headache disorder with dizziness was aggravated in line of duty during active duty for training. 38 U.S.C.A. §§ 101(24), 106, 1131, 1132, 1153 (West 1991); 38 C.F.R. §§ 3.304(b), 3.306(a), (b) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant presents a well-grounded claim, and the pertinent facts have been developed. 38 U.S.C.A. § 5107(a) (West 1991). The question before the Board is whether the evidence supports the claim. No question of incurrence in service is at issue. The appellant alleges and concedes that each claimed disability originated with injuries sustained in a MVA of May 25, 1990. She argues that each claimed disability became worse in service due to the physical rigors of basic training, which further strained her neck, left shoulder and low back muscles and caused increasingly severe headaches, all of which have continued to worsen of failed to resolve from the aggravated status that developed during ACDUTRA. Although the service entrance examination of January 1990 predated the MVA was normal in all respects pertinent to this case, the pre-service private medical records and the service medical records are "clear and unmistakable (obvious or manifest)" evidence that the claimed disorders pre-existed service, hence rebutting the presumption of soundness. 38 C.F.R. § 3.304(b). The question at issue is whether the appellant suffered aggravation of the pre-existing injuries during ACDUTRA. "A preexisting injury . . . will be considered to have been aggravated by [ACDUTRA] where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 C.F.R. § 3.306(a) (1994). On May 25, 1990, the appellant was the driver of a vehicle stopped at an intersection when struck from behind by another vehicle. Report of Accidental Injury (VA Form 21-4176 (Feb. 13, 1991). A May 1993 statement from her mother informs that "this date was prior to her leaving for duty in the Army National Guard May 29, 1990." She was seen in the emergency room of Hillcrest Baptist Medical Center, where she was examined and observed for about four hours, then released. Her chief complaint was pain in the neck, upper back, left elbow, left shoulder and left tibia- fibula. She reported she was wearing seat and shoulder belts and had no loss of consciousness. On evaluation she stated she had pain in the back, neck, head and left leg. On examination she was in no acute distress, oriented to time, place and person, and neurologically intact. Head, ears, eyes, nose and throat showed no acute lesion, there was a contusion of the left lower eyelid. The remainder of the examination was negative, as were cervical, skull and left leg x-rays. The diagnosis was acute cervical and back strain, contusions per left leg, secondary to a MVA. She was prescribed Darvocet and instructed to read the whiplash handout, see a family doctor that week, and "head injury protocol." Of record are orders for the appellant to report for initial ACDUTRA on May 28, 1990, thence to proceed to her training location. At that location on May 30, 1990, she was seen for complaints of neck left shoulder and back pain with the history of recent trauma. She had decreased movement in the neck area, was unable to flex the left arm past 45 degrees without restrictive pain. On orthopedic consultation that date she complained of left posterior neck pain with left arm elevation. On examination she had small ecchymosis, left infra-orbital, external ocular movements were full. The neck had full active range of motion without tenderness; the shoulder had essentially full active range of motion without instability; neurologic examination was intact, without motor or sensory deficit in the upper extremity. Cervical spine with "F/E view" was within normal limits. The impression was cervical strain, no profile indicated. On June 6, 1990, the appellant was seen for complaints of headaches, chest pain and nausea. She was again referred to the orthopedist, with the note that she had been cleared for full duty May 30 and now guarded with any range of motion or strength test of the trapezius and shoulder. On orthopedic examination, the examiner noted extreme subjective pain with range of motion exercise, worse since the last examination. The neck had decreased active range of motion left lateral rotation secondary to pain, shoulder without instability but with decreased abduction secondary to pain, and the back had tenderness over the left scapular area and spinous process secondary to pain, without instability of the spine or scapula. Neurologic examination was within normal limits. The assessment was cervical strain, not resolving, existed prior to service (EPTS). On June 8, 1990, there was an EPSB proceeding. Noted was an EPTS condition of MVA two days prior to induction with neck and left arm injuries. The subjective findings were complaints of left neck pain, inability to use left arm, dizziness, upper back pain and severe headaches. The objective findings for the neck were tender left trapezius and thoracic paraspinal muscles, pain with forward flexion, left arm, but no instability and intact cranial nerves. The diagnosis was cervical muscle strain. The EPSB found the diagnosis existed prior to service and was not aggravated in service; the appellant failed to meet medical procurement standards. She was put on a profile and discharged June 28, 1990. The appellant had a VA examination in October 1992. She complained of cervical, lumbar, left arm and headache with dizziness problems. Historically, she reported the MVA of May 1990 and treatment in the emergency room. She stated that she did not think at the time she had any serious injuries and she reported for ACDUTRA several days later. She stated that she began basic training and with the performance of pushups, bending, lifting and other activities she began having pain in the left posterior aspect of her neck and into the trapezius muscles between the back of her neck and her left shoulder, radiating down her arm with shooting pains in her hand. She stated that she complained and saw a doctor, but little was done for her and she continued basic training, continuing to have pain and developing frequent dizzy spells and headaches and pain in her upper back radiating to her left low back. She stated the problems persist. The headaches were described as generalized and not relieved by anything. On examination there was tenderness to palpation over the left posterior cervical muscles and over the left trapezius muscles. There was no limitation in the range of motion of the fingers, elbows, shoulders, hips, knees, feet or ankles. She complained of some soreness on manipulation of the left shoulder, but there was no limitation in the range of motion. The cervical spine flexed 30 degrees, extended 30 degrees, flexed laterally 30 degrees right and left and rotated 55 degrees right and left. There was some tenderness on palpation over the upper thoracic spine and over the left paralumbar muscles. The lumbar spine flexed 55 degrees, extended 25 degrees, flexed laterally 30 degrees right and left, and rotated 30 degrees right and left. All reflexes were normal, she could walk on her toes and heels and could squat. The diagnoses were history of MVA; posterior left cervical muscle pain with radiation into the left trapezius and upper arm; pain in the left trapezius and left upper parathoracic muscles; past history of low back pain. On VA neurologic examination in October 1992, she reported the onset of headaches in service, without known precipitating factor at the beginning and none for the individual headache. They began bitemporally and generalized with a severe throbbing sensation, causing her to cry at times, with headaches occurring daily. She complained of constant aching discomfort in the left arm, generalized with no specific distribution, with occasional numbness. She stated this began in service while doing pushups; she felt her left arm "pop" and she had pain. She also complained of aching up and down the thoracic spine. The examiner commented that he did not get other neurologic sounding symptoms. Objectively, the neurologic examination appeared normal. The examiner commented that the headaches were fairly nondescriptive and could be vascular or migraine according to the severity described. The diagnosis was probable tension vascular headaches. There were no objective neurologic findings associated with the other complaints. The examiner thought the back problems were probably musculoskeletal. The appellant testified at a hearing in May 1993. She stated that she does not know if she was injured when she reported for ACDUTRA, but was told at the induction center that nothing was wrong with her. She stated, in essence, that she was compelled to perform basic training despite her complaints of pain and increasing pain with pushups until she was put on profile and excused from training, after which the sergeant at her barracks ordered her to do strenuous tasks at the barracks. She opined that had she been permitted to delay ACDUTRA aggravation of her injuries may have been avoided. A May 1993 statement from Janis Watley, a passenger in the appellant's car at the time of the May 1990 MVA, indicated that on communication with the appellant's local National Guard sergeant she was informed that she must report for ACDUTRA as scheduled and be evaluated then for fitness for duty. In July 1994, an addendum to the October 1992 VA examination reported on review of x-rays from October 1992 taken in of the shoulders, skull, cervical, thoracic and lumbar spine were essentially normal, except for a finding of narrowing of the lumbosacral joint without associated osteoarthritic change and normal discs and vertebral height otherwise. The appellant continued to complain of constant burning pain from the left side of her neck to her left shoulder down into the left hand, involving the entire surface area and not restricted to any particular cervical radicular group or cervical plexes. She also complained of pain, mainly intermittent "charley horse" of the left leg with weakness and frequent giving out of the leg. She continued to complain of headaches, intermittent, sharp and severe. On brief physical examination, there were no abnormalities other than as found in October 1992. There was subjective pain to palpation of the left trapezius muscle. Neurologic examination was normal. There was no tenderness of the cervical spine. The impression was of myalgia of the left trapezius muscle and tension type headaches as related to probably previous injury resulting from whip-lash or hyperextension injury of the neck. The examiner commented that his review of the appellant's VA claims folder and conversation with the appellant indicated that she had been on active duty at the time of the accident, having been inducted into the National Guard in January 1990 and having participated in weekly weekend maneuvers and received at least two pay checks prior to her MVA. Service personnel records show the date of entrance into active duty or enlistment as May 28, 1990, DA Form 2139 (June 26, 1990), and leave and earnings statements show pay only for the period June 1 to 30, 1990. Orders of January 8, 1990, indicate the appellant was ordered to her "Initial Active Duty for Training" to report on May 28, 1990. The letter from the appellant's mother indicates that the appellant was not proceeding directly to ACDUTRA at the time of her MVA, consequently she was not on active duty at the time of the MVA. See 38 C.F.R. § 3.6(e) (1994). Nor do service personnel records indicate that she was on ACDUTRA at the time of her motor vehicle accident. The medical evidence of record reveals the fact of the MVA and the complaints of neck, left shoulder, head, upper back and left leg pain when treated at the civilian emergency room. The appellant testified that she was ordered to report for ACDUTRA and compelled to perform her basic training, during which she developed increasingly severe symptoms. That testimony is credible and consistent with the May 30, 1990, orthopedic evaluation finding of fitness for duty. The evidence further shows that the symptoms were attributed to her injuries sustained in the MVA, without objective findings on May 30, 1990, but with observed increasing limitations of motion and complaints of headaches during the period May 30 to June 6, 1990, with the headaches described as severe by June 8, 1990. Subsequent testimony and VA examination found ongoing complaints and muscle tenderness in the cervical paraspinal muscles including the left trapezius muscle as well as "tension vascular" headaches. The preponderance of the evidence is consistent with finding that injuries of the paracervical muscles and headaches with dizziness sustained in the MVA prior to ACDUTRA were aggravated by the rigors of basic training and that aggravated state has persisted to the present. Service connection is for paracervical muscle strain, including the left trapezius, and for headaches with dizziness, is warranted. Notably, the lumbar spine was not complained of during ACDUTRA and there is no indication of increasing symptoms in the lumbar spine during ACDUTRA. Such complaints as the appellant had regarding her back during ACDUTRA pertained to the upper thoracic musculature; the trapezius being either an upper thoracic or a lower cervical paravertebral muscle. Likewise, the service medical records relate complaints about the left arm to the shoulder, i.e., cervical strain, which was diagnosed in service. There is no indication of or finding of a discrete disorder of the left arm. The appellant did not testify regarding the status of her lumbar spine in service, consequently there is no question of her credibility in that regard. The current complaints, even if attributable to the MVA are not shown to be the result of increased disability arising during ACDUTRA. The preponderance of the evidence is against finding that a disorder of the left arm or of the lumbar spine was aggravated in service, consequently, those claims must be denied. ORDER Service connection for paracervical muscle strain, including the left trapezius muscle, and for headaches with dizziness, is granted. Service connection for a lumbar spine disorder and for a left arm disorder is denied. C.P. RUSSELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.