Citation Nr: 0000466 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 92-13 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The veteran served on active duty from November 1990 to September 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 1991 rating decision of the Department Of Veterans' Affairs (VA) regional office (RO) in Wilmington, Delaware, that denied the veteran's claim of service connection for a low back disability and a neck disability. This matter was previously before the Board in January 1993 and July 1996 at which times it was remanded to the RO for additional development. The claim of service connection for a low back disability was subsequently resolved in March 1997 when the RO granted service connection for lumbar radiculopathy with radiating pain down the left leg. In light of this grant, the issue of service connection for a low back disability is no longer in appellate status. In April 1998 the veteran filed a Notice of Disagreement with the RO's February 1998 denial of service connection for post- traumatic stress disorder (PTSD) and major depression/anxiety, as well as for headaches, a menstrual disorder, muscle pain, twitch of the right side of the jaw, a skin condition and insomnia due to undiagnosed illness. A Statement of the Case regarding these issues was issued to the veteran in May 1998, and in July 1998 the veteran requested in writing that she be given an extension of time in filing a Substantive Appeal. See 38 C.F.R. § 20.200. To date, no action has been taken regarding this request. Pursuant to 38 C.F.R. § 20.303, an extension of time in filing a Substantive Appeal may be granted if good cause is shown. Accordingly, this matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran's neck disability existed prior to her period of active duty. 2. The veteran's neck disability increased in severity in service beyond the natural progress of the disease. 3. Chronic neck strain is attributable to service. CONCLUSION OF LAW The veteran's pre-existing chronic neck strain is presumed to have been aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.306 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background Medical records prior to the veteran's active duty service show that she sustained a neck injury in a car accident in September 1984. She was diagnosed in October 1984 as having a severe cervical sprain. A private medical record dated in September 1988 reflects a diagnosis of cervical-dorsal myositis with sensory radiculopathy on the left. It also contains a history of the September 1984 motor vehicle accident. At a physical examination for the Army National Guard in March 1989, the veteran was noted to have cervical "whiplash" type symptomatology with muscle strength greater on the right than the left. She was also noted to have undergone nerve blocks and was taking anagelsic and muscle relaxant medication. The veteran was noted to have continued left neck pain at a physical examination in October 1989. A Private medical record dated in June 1990 reflects a diagnosis of cervical-dorsal myositis with sensory radiculopathy on the left. It also reflects a history of the September 1984 motor vehicle accident. In July 1990 the veteran was assigned two days of light duty due to muscle spasms in her neck. She also complained of neck stiffness. A July 1990 Statement of Medical Examination and Duty Status notes that the veteran's neck spasms were from a previous accident. A September 1990 private medical record reflects a diagnosis of cervical-dorsal myositis with sensory radiculopathy on the left. It too reflects a history of the September 1984 motor vehicle accident. Approximately one week after the veteran's entry into active duty, she was physically evaluated for deployment purposes. Her history included a motor vehicle accident in 1984 with intermittent pain and muscle spasms in the neck and shoulder girdle that was greater on the left than the right. She was diagnosed as having chronic neck strain and was found to be deployable with medication and a profile prohibiting push-ups and strenuous arm activity. On file is a February 1991 sick slip from Saudi Arabia for neck pain. Also in February 1991 the veteran's private physician sent a letter to her suggesting that she may have overestimated the significance of her injuries that she sustained in a motor vehicle accident in September 1984. He recommended that she make an appointment to see a Commanding Officer or "X.O." to discuss her medical status. In a February 1991 memorandum, the veteran's commanding officer stated that since mobilization in support of Operation Dessert Shield the veteran had suffered from ongoing medical problems with her neck and back. He said that these injuries had been incurred from an automobile accident prior to active duty activation. He said that this medical condition "significantly degraded" the veteran's performance as a cook and that her physical profile limited her from doing even many basic functions required for her military occupational specialty such as lifting heavy pots and pans or standing for extended lengths of time. He recommended that the veteran be immediately evaluated by a Medical Evaluation Board. A Statement of Medical Examination and Duty Status dated in April 1991 shows that the veteran's existing chronic neck pain was aggravated by lifting heavy pots and pans while on active duty in Saudi Arabia. The examiner stated that the injury was incurred in the line of duty and he based his assessment on medical records. On file is an April 1991 Medical Board report which notes that following the veteran's activation (into active duty) the veteran continued to have neck pain, and that the pain extended to her left arm and leg. It also notes that the veteran had been able to run a little, with effort, when she was first activated, but that "currently" she was basically unable to run or to lift heavy objects. This report further notes that the veteran's condition was not incurred in association with her military service and it contains a recommendation that she be separated from service. The veteran was found in an April 1991 Medical Board Evaluation Proceeding to be physically unfit for active duty due to chronic neck and upper back pain, responsive to conservative therapy, and no evidence of surgically treatable disease of the upper back. The Medical Board also found that this condition existed prior to service, and was permanently aggravated by service. X-ray studies of the veteran's cervical spine taken in April 1991 revealed disc spaces that were well preserved with no evidence of significant degenerative joint disease changes. A May 1991 consultation report states that the lifting and movement associated with the veteran's work as a cook aggravated her neck problem. She was diagnosed as having chronic cervical dysfunction. A Physical Evaluation Board Proceeding report in June 1991 shows that the veteran's chronic neck pain existed prior to service. It also found that this condition was not aggravated by service, but rather was the result of natural progression. Private medical records dated in August and September 1991 contain diagnoses of cervical-dorsal myositis. A service record shows that the veteran was separated from active duty in September 1991 due to physical disability. In September 1991 the veteran filed a claim of service connection for a neck injury. In a November 1991 rating decision, the RO denied the veteran's claim of service connection for a neck disability on the basis that such disability existed prior to service and was not aggravated by service. At a RO hearing in February 1992, the veteran testified that prior to active duty she performed clerical work, and that her duty as a cook on active duty aggravated her neck disability. She said that while on active duty in Saudi Arabia she worked 12 to 18 hour days and was required to wear combat gear including water canteens, a helmet, and ammunition pouches. She said that she also had to carry an M-16 the whole time. At a Central Office hearing in October 1992, the veteran testified that the last time she sought medical attention prior to entering active duty in November 1990, was in June or July 1990. She said that at her entry into active duty her condition was more or less normal. She said that her duties with the Delaware National Guard before being called to active duty was in food service and that she had been on light duty at that time. She said that her profile called for no heavy lifting and no prolonged standing and that she had been able to operate in that capacity fairly easily. She said that her duties during active duty was also in food service, but that she also had to operate as combat personnel. She said that this required her to carry two duffel bags, a helmet, gas mask, ammunition and a "L.V.E." She said that carrying a gas mask and "L.V.E." was on a daily basis. She said that her duties as a cook required her to lift a lot of different things including emersion heaters, stoves, and food containers. She said that she worked anywhere from 18 to 20 hours a day and serviced anywhere from 8 to 2,500 people. She said that her light duty profile was not honored at all. She also said that she first began experiencing problems with her neck in Saudi Arabia around the fourth day. She said that her condition got to the point where she could hardly get out of bed. She said that she was having muscle spasms, a stiff neck and shooting pain down her legs. She said that she had not noticed any improvement in her neck since her discharge from service. Following a VA examination in October 1993, the veteran was diagnosed as having brachioplexus traction injury left upper extremity in the lateral cord and upper trunk distribution. In written argument in August 1994, the veteran's representative stated that the fact that the veteran was able to perform her National Guard duties for six years after the motor vehicle accident, along with her testimony of normal functioning when she entered active duty, plus the physical demands of active duty, was persuasive evidence of inservice aggravation. VA treatment records from 1994 to 1996 reflect the veteran's complaints of neck pain. They also contain an assessment in August 1994 of history of cervical injury in a motor vehicle accident in 1984 with secondary trauma from Desert Storm service. At a Central Office hearing in February 1996, the veteran's representative argued that following the 1984 automobile accident, in 1985 and again in 1989, the veteran was found to be physically qualified for retention in the Army National Guard. He also pointed out that in November 1990 the veteran had been found to be deployable, but with limitations to include no strenuous activities of the arms. The veteran testified that unlike the National Guard, she had no one to whom she could delegate the heavy lifting, so she did it all herself, including unloading trucks. She said that she had to wear the full wet gear whenever she was not in the kitchen. She said that stateside she was more of a civilian than a military person and only served one weekend a month and two weeks a year compared to her active duty status which was ongoing every day. She said that her neck disability did not become aggravated until after she was deployed in the Persian Gulf. The veteran said that since active duty her neck pain has increased, along with the amount of medication that she has been prescribed. The veteran's representative also pointed out that the Medical Evaluation Board which had found that the veteran had a permanent aggravation of her neck condition in service was comprised entirely of physicians -three who examined her and one who confirmed the findings. He said that in contrast, the Physical Evaluation Board (which did not find aggravation) was comprised of only one medical member. At a VA orthopedic examination in November 1996, the veteran reported neck pain on a daily basis with pain that radiated to the left lower extremity. The symptoms were noted to be constant and progressive in nature. The veteran was diagnosed as having chronic cervical strain and sprain with symptom radiation to the left upper extremity. She was also diagnosed as having rule out disc pathology and radiculopathy. The examiner opined that the symptoms in the veteran's neck would have been aggravated by her activity in service between 1990 and 1991 over and above what it was prior as a result of the 1984 motor vehicle accident. He said that this was based on the veteran's history of her symptoms and history of work activity. He also said that specific diagnostic testing would determine if there were objective findings to substantiate the subjective complaints. A magnetic resonance imaging of the veteran's cervical spine was performed in December 1996 revealing a negative examination. In February 1997 the VA examiner who performed the November 1996 examination stated that "Given normal MRI-C, spine and normal electrodiagnostic studies and my physical examination there would be no objective evidence to confirm [the veteran's] increased symptoms due to Persian Gulf service." II. Legal Analysis The veteran's claim of service connection for a cervical disability is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that she has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107 (West 1991). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). A veteran is presumed to be in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service will rebut the presumption. 38 U.S.C.A. § 1111 (West 1991). Because the record does not contain an entrance examination report and in view of the veteran's assertion that she was more or less "normal" when she entered active duty, it will be presumed she was in sound condition when she entered active duty. See Jensen v. Brown, 19 F.3d 1413 (Fed Cir 1994). However, the evidence on record clearly and unmistakably rebuts this presumption. In this regard, preservice medical records from the Army National Guard show that the veteran sustained a neck injury in an automobile accident in September 1984. She was diagnosed shortly thereafter as having severe cervical strain. Medical records from the Army National Guard show that she was treated for neck spasms and stiffness within months of her entry into active duty. Moreover, six days after the veteran's entry into active duty she underwent an evaluation to determine her deployability. The examiner reported the veteran's motor vehicle accident in 1984 and noted symptoms of intermittent pain and muscle spasms in her neck. He said that the veteran was deployable with medication and a profile, and gave her an assessment of chronic neck strain. In view of the veteran's documented neck injury prior to active duty and medical evidence of continuing neck symptomatology up through the time she entered active duty, such evidence clearly and unmistakably rebuts the presumption that the veteran was sound condition with respect to her cervical spine when she entered active duty in November 1990. 38 U.S.C.A. § 1111. The next question to address is whether the veteran's neck disability increased in severity during service. If it did, than the veteran's neck disability is presumed to have been aggravated by service absent clear and unmistakable evidence that the increase in severity was due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The veteran contends that her neck disability was aggravated by service due to having to lift heavy objects while performing her duties as a cook, and because she had to wear combat gear on a daily basis. In regard to her cook duties, the veteran said that her profile was not followed during Operation Desert Storm and that she had to lift heaters, ovens, food containers and unload trucks. She also said that whenever she was not in the kitchen she had to wear combat gear including two duffel bags, ammunition, water canteens, a helmet, gas mask and a weapon. She said that the requirements of active duty differed from that of the Army National Guard since she did not have to wear the miliary gear in the Guard and only performed cooking duties for the Guard one weekend a month and two weeks out of the year. She said that in contrast she had to perform her cooking duties every day while on active duty lasting anywhere from 18 to 20 hours a day. She and her representative point to the fact that she had been able to maintain her active duty status with the Armed National Guard for six years prior to active duty, but was unable to complete her active duty assignment because of her neck disability. The fact the veteran was found to be fit for deployment to Saudi Arabia in November 1990 despite her neck disability, but was subsequently found to be medically unfit for active duty service because of her neck disability, is evidence that the disability worsened in severity in service. Moreover, an April 1991 Medical Board report notes that while the veteran continued to have pains in her neck following activation (into active duty), such pains had extended to her left arm and leg. Additionally, the report notes that the veteran had been able to run a little with effort when she was first activated, but that at that point she was basically unable to run or to lift heavy objects. This is all evidence of a worsening disability. It is also important to note that in April 1991 the Medical Evaluation Board found that while the veteran's chronic neck pain had existed prior to service, it had been permanently aggravated by service. For these reasons, the weight of evidence supports a finding that the veteran's neck disability increased in severity in service thus triggering a presumption that the veteran's neck disability was aggravated by service. Atkins v. Derwinski, 1 Vet. App. 228 (1991). The last question to address is whether there is clear and unmistakable evidence to rebut the presumption of aggravation by showing that the veteran's increased neck disability in service was due to the natural progression of the disease. 38 U.S.C.A. § 1153; Lapaosky v. Brown, 4 Vet. App. 331 (1993). In this regard, unlike the Medical Evaluation Board's conclusion, the Physical Evaluation Board concluded in June 1991 that the veteran's chronic neck pain had not been aggravated by service, but was rather the result of natural progression. Also, there is a VA examiner's opinion in February 1997 who, while previously stating that "[the veteran's] neck symptoms would be aggravated by her activity in the service between 1990 and 1991 over and above what it was prior as a result of the 1984 MVA", stated that in view of normal testing and physical examination, " there would be no objective evidence to confirm [the veteran's] increased symptoms due to Persian Gulf service." In contrast, there is a May 1991 service medical record containing a physician's statement that the veteran's lifting and movement associated with her duties as a cook aggravated her neck problem. Similarly, there is an August 1994 VA treatment record whereby the physician assessed the veteran as having a history of cervical injury in a 1984 motor vehicle accident with secondary trauma from Desert Storm Service. By the very fact that there is both positive and negative evidence as to the question of whether the veteran's increased neck disability in service was aggravated by service, it certainly cannot be said that such evidence clearly and unmistakably shows that the increased neck disability was due solely to natural progression. As such, the presumption of aggravation stands, and the veteran's claim of service connection for a neck disability is granted. 38 U.S.C.A. § 1153 (West 1991). ORDER Service connection for chronic cervical strain is granted. C.W. Symanski Member, Board of Veterans' Appeals