Citation Nr: 0007676 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 97-17 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for neck conditions. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Associate Counsel INTRODUCTION The veteran served on active duty from September 1942 to February 1946. Previous Regional Office and Board of Veteran's Appeals (Board) decisions denied service connection for residuals of a skull fracture and for a back (dorsal spine) disorder. Because the medical evidence recently submitted reflects cervical disc disease, a condition not addressed in previous final decisions of record, the Board agrees with the RO that this is a new service connection claim entitled to de novo review. This appeal arises from a March 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania that determined that a claim for service connection for neck and shoulder conditions was not well grounded. There being no specific claim for, or diagnosis of, a "shoulder condition," the Board has characterized the issue as service connection for neck conditions. The veteran has appealed to the Board for favorable resolution of the claim. FINDINGS OF FACT 1. All evidence necessary for equitable disposition of the claim has been obtained. 2. The veteran suffered major injury during the crash of his aircraft in 1943 in California. 3. Cervical sprain/strain; myofascitis, cervical degenerative disc disease, and cervical osteoarthritis were caused by trauma suffered in the 1943 aircraft accident. CONCLUSION OF LAW Cervical sprain/strain, myofascitis, cervical degenerative disc disease, and cervical osteoarthritis were incurred in active service. 38 U.S.C.A. § 1110, 1137, 5107; 38 C.F.R. § 3.303, 3.303(d) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's service connection claim is well grounded. The veteran has submitted medical evidence tending to relate present neck conditions to trauma received during active service, thus providing a plausible basis for the claim. However, the establishment of a plausible claim does not dispose of the issue. The Board must review the claim on its merits and account for the evidence that it finds to be persuasive and unpersuasive and provide reasoned analysis for rejecting evidence submitted by or on behalf of the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996), citing Gilbert, at 54. The Board finds that all relevant evidence for equitable disposition of this claim has been obtained to the extent possible and that no further assistance to the veteran is required to comply with VA's duty to assist him. See 38 U.S.C.A. § 5107(a) (West 1991). I. Factual Background Service department records reflect that the veteran was injured in an aircraft accident during active service. The National Personnel Records Center (NPRC) has reported that no service medical records are available and may have been destroyed in a fire at that location in 1973. NPRC did supply an official accident report that notes that 10 crewmembers were assigned to a B-24 aircraft that crashed on takeoff in October 1943 resulting in three fatalities, two with major injuries, and five with minor injuries. The veteran is listed by name in the report as one of the two crewmembers surviving with major injuries. The crash occurred in California, not in combat. A subsequent operations report dated the day of the crash notes that the veteran was in critical condition with second degree burns to the face and possible skull fracture. A report of separation from active service indicates that the veteran spent seven months in patient status during his active duty. The dates of patient status are not supplied. In May 1979, the veteran submitted an application for VA benefits for residual of injuries suffered in an aircraft accident. At that time, his claim was for recurring headaches and backaches. In August 1979, as noted above, NPRC indicated fire-related service. Board decisions in the 1980s denied service connection for a back disorder and residuals of a skull fracture. These decisions are based on the fact that there were no ascertainable skull fracture residuals shown and that any current back disorder lacked medical evidence of a link to active service. A January 1987 VA examination report notes X-ray evidence of degenerative joint disease of the cervical spine. No opinion on etiology was supplied. As noted in the introduction, the veteran submitted medical treatment reports in March 1997. According to these reports, Mark Franz, D.O. examined the veteran, in December 1996. Dr. Franz offered diagnoses of cervical sprain/strain; myofascitis; cervical degenerative disc disease; and cervical osteoarthritis. Dr. Franz reported, "Significant degenerative changes are of distant etiology and are thought to have arisen from trauma secondary to aircraft crash in 1943." In December 1996, Robert J. Interval, D.C., reported that in April 1996, he manipulated the veteran's spine for complaint of neck and shoulder pain. Dr. Interval stated, "It is my professional opinion that [the veteran's] problem does stem from this airplane accident in 1943." In August 1997, the veteran testified before an RO hearing officer that he did not have any other trauma to his back, other than the aircraft crash in 1943. He testified that he saw Dr. Cochran, a private physician after active service but that that doctor is deceased and no records are available. He testified that Dr. Cochran recommended a chiropractor for the back and that chiropractor treated the back. He recalled that the chiropractor died in about 1955 and no records are available. He recalled that after the October 1943 plane crash, he was in the hospital until June 1944. II. Legal Analysis In order to establish service connection for a disability, the evidence must show it resulted from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110, 1137 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The evidence in this case indicates that the veteran was critically injured in an aircraft accident during active service. The accident was fatal for three other crewmembers. His service records are too sparse, due to the NPRC fire in 1973, to ascertain the extent of his injuries at that time. VA X-rays showed cervical disc disease in 1987. The veteran has submitted medical opinions that the current cervical conditions stemmed from the 1943 trauma. There has not been any medical evidence submitted that would tend to controvert these medical opinions, nor does the Board find that they are based on an incorrect factual history. After consideration of all of the evidence, including the veteran's testimony, the Board finds that it favors service connection for the current cervical sprain/strain with myofascitis, osteoarthritis, and degenerative disc disease. ORDER The claim of entitlement to service connection for cervical sprain/strain with myofascitis, osteoarthritis, and degenerative disc disease is granted. J. E. Day Member, Board of Veterans' Appeals