BVA9503529 DOCKET NO. 92-08 995 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. D. Jackson, Associate Counsel INTRODUCTION The veteran had active service from July 1979 until March 1985 and from December 1985 until June 1989. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 1991 from the Milwaukee, Wisconsin, Regional Office (RO). In December 1992, the Board remanded this case for further development. Subsequently, the RO confirmed and continued the prior rating actions in April 1993. CONTENTIONS OF APPELLANT ON APPEAL The appellant argues that he currently suffers from arthritis of both knees. He claims that arthritis had its onset during active military service. Specifically, he contends that due to the intense physical training received during service he now suffers from arthritis of both knees. He also claims that he was diagnosed several times during service with arthritis of both knees. The appellant further maintains that the physical training requirements of active military service also aggravated a congenital back disorder. He asserts that extreme pressure was placed on his cervical spine by the wearing of steel pot helmets and field packs during training. As such, he should be granted service connection for arthritis of both knees and a cervical spine disability. 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. Based on review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for entitlement to service connection for a bilateral knee disorder. However, the preponderance of the evidence supports the claim for entitlement to service connection for a cervical spine disorder namely the residuals of cervical foraminal encroachment including nerve root compression. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. The veteran's service medical records are negative as to any treatment, complaints or findings of a knee disorder during service. 3. Patellofemoral pain syndrome, bilaterally was first demonstrated more than two years after service and is unrelated to service. 4. Examination during service revealed a congenital fusion of the C5 and C6 vertebrae and narrowing of the cervical neural foramen. 5. Fusion of the C-5 and C-6 vertebrae is congenital and by definition is of lifelong duration. 6. Narrowing of the neural foramina of the cervical spine due to hypertrophy of uncovertebral joints at the C3-4 and C4-5 levels which resulted in nerve root compression was shown to have occurred during service. CONCLUSIONS OF LAW 1. A bilateral knee disorder was not shown to have been incurred in or aggravated during the veteran's active military service. 38 U.S.C.A. §§ 1131, 5107 (West 1991) 38 C.F.R. § 3.303 (1993). 2. Fusion of the C5 and C6 vertebrae is a congenital or developmental defect which is not a disability for compensation purposes. 38 U.S.C.A. §§ 1111, 1131, 1137, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). 3. A cervical spine disorder namely residuals of cervical foraminal encroachment, hypertrophy of uncovertebral joints, with nerve root compression was incurred in active military service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.306 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, it is necessary to determine if the appellant has submitted a well-grounded claim and, if so, whether the Department of Veterans Affairs (VA) has assisted the appellant in properly developing his claim. A "well-grounded" claim is one which is not implausible. The appellant's claims appear to be reasonably based. A review of the evidence further indicates that all relevant facts have been properly developed and that there is sufficient evidence upon which to fairly resolve the issues raised by the instant case. Therefore, a remand in order to permit additional development of the record is unnecessary. I. Entitlement to Service Connection for a Bilateral Knee Disorder The Board notes that to permit service connection, the facts must establish that a bilateral knee disorder was incurred in or aggravated while serving in the Armed Forces. 38 U.S.C.A. § 1131 (West 1991). The Board notes that continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1993). In this regard, the veteran's service medical records do not show that the veteran presented any complaints nor sought treatment for a knee disorder during service. Additionally, the veteran has not submitted any evidence of treatment for a knee disorder for almost two years subsequent to service. The first documented evidence of a bilateral knee disorder (patellofemoral stress syndrome) is in May 1991. Such a history would not necessarily lead to a conclusion that the veteran's bilateral knee disorder is service related without substantial speculation. It is noted that the veteran and a fellow comrade have indicated that the veteran received treatment during service; however, even assuming that the veteran had sustained a bilateral knee injury during service, documented continuity of symptomatology is not shown during the period of more than two years following service. This would tend to show that any injury that the veteran may have received would have been acute and transitory in nature. The Board also notes the statement of the veteran's service associate refers to treatment for arthritis, but does not specify as to what joints were involved. The Board also carefully considered the testimony furnished by the veteran at his personal hearing in November 1991. The veteran related his medical history and stated that he received treatment during service for his knee disorder. However, the Board has directed efforts for medical records to verify these statements without success. These searches have not produced any pertinent evidence. Additionally, the veteran in his testimony before the RO related that examiners diagnosed arthritis several times during his period of active duty. However, the veteran's most recent VA examination dated in May 1991 does not confirm the existence of arthritis. Such evidence lessens the probative value of the statements presented by the veteran. In summary, there is just no persuasive clinical or other evidence to support the veteran's contention that a chronic bilateral knee disorder had its onset during service. Accordingly, in light of the absence of any knee pathology noted in service, and during the period of time between service discharge and the point at which a disability was initially documented, we find that service connection has not been established as the weight of the evidence is against the claim. II. Entitlement to Service Connection for Cervical Spine Disorder In regards to the veteran's claim for service connection for a cervical spine disorder, the service medical records reveal that in November 1987 the veteran presented complaints of acute exacerbation of neck pain. A December 1987 X-ray revealed fusion of the C5 and C6 vertebral bodies. The examiner commented that this was probably congenital in origin. There was mild narrowing of the left C3-4 neuroforamen and the right C4-5 neuroforamen. There was mild asymmetry of the right C2-C3 and C4 articular pillars. The examiner noted that this was probably congenital in nature. It was also noted that the C5 and C6 bodies in addition to being fused were small including the small spinous processes and pedicles. A January 1988 X-ray report noted the block fusion of the C5-6. However, there was reportedly no evidence of a narrowed foramen. Physical therapy notes dated in February 1988 indicate that he received treatment including cervical traction which reportedly led to improvement. A VA examination conducted in May 1991 confirmed a congenital fusion at the C5-6 (Klippel-Fiel syndrome). The veteran presented sworn testimony at his personal hearing in November 1991. He pointed out that he simply woke up one morning with a stiff neck. He also reported that there was an increase in the basic training requirements of physical training during his tour of duty. He stated further that he noticed back related symptoms, particularly, when standing at parade rest. A report of a magnetic resonance imaging (MRI) performed at a VA medical facility, dated in January 1992, noted the C5-C6 fusion. Evaluation of the neural foramen and nerve roots from C4 through C8 demonstrated bilateral foraminal narrowing at the C3-C4 and the C4-C5 levels. The examiner noted that the narrowing at the C3-C4 and the C4-C5 levels appeared to be secondary to hypertrophy of the uncovertebral joints. VA outpatient records developed subsequently show that he has continued rehabilitation treatment at the VA medical center for his neck pain. In regards to the C5-C6 fusion, as noted above, service connection is granted for disability resulting from injury or disease, incurred in or aggravated by service. A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition except for those defects noted when he was examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. §§ 1111, 1137 (West 1991). A cervical spine disorder was not reported on the veteran's November 1985 enlistment examination. The fusion of the C5 vertebrae with the C6 vertebrae has been repeatedly diagnosed as a congenital defect. Congenital defects are of lifelong duration which rebuts the presumption of soundness. 38 U.S.C.A. §§ 1111, 1137 (1993). Additionally, congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation provided for compensation benefits. As such, the C5-C6 fusion is not considered a disability for compensation purposes under the regulations. 38 C.F.R. § 3.303(c) (1993). Although the veteran suffers from a congenital defect, if the evidence shows that there was a disability superimposed upon this pre-existing disability, service connection can be established. In February 1994, the Board requested a written opinion from its medical advisers in order to assist in the resolution of the veteran's claim for entitlement to service connection for a cervical spine disorder. A July 1994 opinion from David D. Anderson, M.D., a medical adviser to the Board, and a diplomate of the American Board of Orthopaedic Surgeons was subsequently submitted into the record. After reviewing the veteran's claims file, Dr. Anderson indicated that in addition to the C5-C6 vertebrae fusion there was neural foramen narrowing at the C3-C4 and the C4-C5 levels noted in service in 1987 and again following service discharge in 1992. He commented that the foraminal narrowing appeared to be due to hypertrophic changes of the uncovertebral joints. However, even more importantly, he noted that these types of changes are acquired conditions and concluded that the cause of the veteran's neck symptoms in service was most probably due to the nerve root compression that resulted from foraminal encroachment. Considering the probative evidence of record including the veteran's written statements and testimony; Dr. Anderson's opinion; the inservice clinical records documenting narrowing of the neural foramina; the post service records indicating continued cervical difficulties, and in granting the veteran the benefit of the doubt, a grant of service connection for a cervical disability namely, the residuals of hypertrophy of uncovertebral joints, neural foraminal encroachment at the C3-4 and C4-5 levels with nerve root compression is warranted. Dr. Anderson's opinion was requested with contemporaneous notification of the veteran and his accredited representative. The medical opinion was requested and received prior to the United States Court of Veterans Appeals (Court) decision in Austin v. Brown, 6 Vet. App.547 (1994). In that decision, the Court expressed reservations about the Board's procedures in obtaining opinions from its staff medical advisers. Given that Dr. Anderson's opinion supports the veteran's claim for service connection for a cervical spine disability, it is found that any reliance upon that opinion constitutes harmless error. See Solomon v. Brown, 6 Vet.App. 396,401, 402 (1994). ORDER Service connection for a bilateral knee disorder is denied. Service connection for a cervical spine disability namely, the residuals of hypertrophy of uncovertebral joints, neural foraminal encroachment at the C3-4 and C4-5 levels with nerve root compression is granted. E. W. SEERY 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.