Citation Nr: 0721625 Decision Date: 07/18/07 Archive Date: 08/02/07 DOCKET NO. 04-02 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for degenerative disc disease (DDD) and degenerative changes of the cervical spine and fracture of the thoracic spine. 2. Entitlement to service connection for DDD of the thoracolumbar spine, claimed as residuals of a low back injury. WITNESSES AT HEARING ON APPEAL Appellant and [redacted] ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The veteran had active service from September 1962 to November 1966. Initially, the Board of Veterans' Appeals (Board) notes that this matter was previously remanded in January 2006 and February 2007, and that the action requested in the remands has been accomplished to the extent possible. This case is now ready for further appellate review. The Board further notes that the veteran has also raised issues of entitlement to compensation for the regional office (RO)'s failure to account for proper dependency status since 1966 and its failure to properly recognize the veteran's decision to waive military retirement pay over the period of November 1, 2002 to February 1, 2004. The record also reveals that the veteran has raised claims for increased ratings for his service-connected Cushing's syndrome and hypertension, to include consideration of the timeliness of the veteran's appeal of the July 2004 rating decision's continuation of the ratings assigned for these disabilities. These issues are hereby referred to the RO for appropriate adjudication. FINDING OF FACT DDD and other degenerative changes of the cervical and thoracolumbar spine, to include residuals of fracture at T12, have been related to active service. CONCLUSION OF LAW DDD and other degenerative changes of the cervical and thoracolumbar spine, to include residuals of fracture at T12, were incurred in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2005); 38 C.F.R. § 3.303 (West 2002). REASONS AND BASES FOR FINDING AND CONCLUSION I. Background At the outset, the Board notes that this matter has been sufficiently developed pursuant to the guidelines established in the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005) (VCAA), and that as a result of its decision to grant the benefits sought on appeal, any failure to notify and/or develop the claims under the VCAA cannot be considered prejudicial to the veteran. In essence, the veteran has asserted in numerous statements and testimony that his current DDD and other degenerative changes of the cervical, thoracic and lumbar spine are related to service, either as directly related to a motor vehicle accident in 1963, or as related to steroid medication he took for asthma that later resulted in a diagnosis of Cushing's syndrome. Service medical records do not reflect any complaints or treatment for a spinal disorder, and X-rays at the time of service separation revealed negative findings. However, the veteran has provided buddy statements that corroborate that the veteran was involved in a motor vehicle accident during service and that he was placed on limited duty as a result of his injuries. Department of Veterans Affairs (VA) treatment records from June 1970 to December 1975 reflect that in September 1975, the veteran presented with severe spasm of the right upper and middle trapezius, and mild, similar symptoms in contralateral musculature with onset several hours earlier. Cervical range of motion was noted to be limited due to pain. The provisional diagnosis was pulled muscle, acute spasm, but the diagnosis following evaluation was trapezius and rhomboid muscle spasm and observe for disc. The veteran also received cortisone injections as a result of his complaints of pain. At the end of the month, the impression was musculoskeletal pain and the plan was to observe and consider chiropractic consultation. Private treatment records from Dr. Blumberg for the period of March 1993 to May 1996 reflect evaluation of the cervical, thoracic, and lumbar spine in March and April 1993. Magnetic resonance imaging (MRI) of the cervical spine revealed a fusion at C5-6 that was speculated to be congenital in nature, and MRI of the lumbar spine revealed some degenerative changes in the discs at T12-L1, L3-4, and L4-5, the most prominent of which was found to be at L4-5. In a medical statement dated in January 2002, Dr. Blumberg opined that the veteran's osteoarthritis from two cervical fusions, a lumbosacral osteotomy, and a thoracic spine fracture were related to injuries the veteran sustained while playing football during service. Dr. Blumberg further opined that the veteran's long-standing use of steroids also had contributed to his anterior and posterior cervical spine fusions, arthodesis, subsequent lumbar osteopathy, and cervical and lumbar central stenosis. Dr. Blumberg noted that all of these medical conditions were treated by him and that they were directly related to his service-related injuries. VA medical examination in August 2002 revealed that the veteran reported an initial diagnosis of DDD of the cervical and lumbar spine in 1985. It was indicated that the veteran had undergone a C3 discectomy in 1985 and that a second surgery was performed two years later. In 1998, he underwent lumbar spine surgery, at which time he was experiencing severe radiating pain and bilateral weakness in the lower extremities. At the time of this examination, the veteran continued to complain of a dull ache in the lumbar spine region. X-rays of the lumbar spine revealed mild to moderate degenerative changes, especially osteoarthritis and degenerative joint disease (DJD), including moderate narrowing of the L4-5, S1 intervertebral disc spaces. There was also an old, anterior wedge deformity of the T12 vertebral body. The overall diagnosis included lumbar disc disease, status post discectomy. VA spine examination in April 2004 revealed that the veteran complained of a motor vehicle accident in 1962, when he was stationed in Paris. The examiner did not review any records in connection with the examination. The veteran reported that he was the driver, and that he rolled the car and was given an Article 15. He was also claiming that as a result of the excessive intake of oral steroids for asthma, he had developed DDD. The veteran reported cervical spine pain radiating into his arms, and thoracolumbar pain radiating into his lower extremities. Cervical spine X-rays were noted to reveal the interbody fusion at C5-6, spasm, and narrowing of the C2-3, C3-4, and C4-5 intervertebral disc spaces. X- rays of the lumbar spine revealed severe narrowing at L4-5 and L5-S1. Degenerative joint changes were also observed. The overall diagnosis was cervical spine DDD with muscle spasms and with a history of a cervical spine fracture secondary to a motor vehicle accident, thoracolumbar spine DDD with left sciatica, and DDD. The examiner opined that the veteran had DDD which was due to aging and as a result of a motor vehicle trauma. The examiner noted that the more common result of chronic steroid use was osteoporosis. VA spine examination in August 2006 revealed that this examiner reviewed the veteran's claims folder and noted the veteran's claim to have sustained a back injury during service in 1963. The examiner also noted that the veteran had undergone multiple surgeries to the cervical and lumbar spine. X-rays at this time were interpreted to reveal degenerative changes throughout the cervical, thoracic, and lumbar spine with a slight wedge deformity of the T12 vertebral body, likely chronic. The overall diagnosis included DDD of the cervical and thoracolumbar spine with postoperative fusions in both the neck and back with residuals. Based on the review of history of the veteran and his buddy statements, this examiner opined that he would give the veteran the benefit of the doubt about his service- connected back injury, and concluded that the claimed auto accident could at least as likely as not precipitate a traumatic spinal condition. He further explained that the natural history of a spinal injury compounded by excessive weight gain due to steroids in the treatment of asthma could, over time, aggravate and accelerate degenerative disease processes resulting in the veteran's present spinal condition. In a private medical statement, dated in November 2006, Dr. Abrams acknowledged that he had not examined the veteran but had reviewed recent medical records. It was this doctor's opinion that if not for the use of steroids required to treat the veteran's asthma, the veteran would not be suffering from Cushing's syndrome, nor have his current day back problems. This physician also noted that the veteran suffered an auto accident while in the military and that together with the steroids, this precipitated an ongoing metabolic cascade of bone deterioration that was a direct result of the corticosteroids. In a private medical statement, dated in November 2006, Dr. Delemarter noted that the veteran had been a patient of his since 1994, when he underwent extensive cervical decompressive surgery. This examiner noted that the veteran's history was significant in that he had massive steroid usage for asthma while in the service and that this had clearly started a cascade of osteoporosis and DDD, and had led to his present day need for low back decompressive and possibly fusion surgery. This examiner further commented that it was quite clear that the veteran's issues with massive steroids and asthma were a precipitating event in his ongoing degenerative process. II. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 2002). The Board has carefully reviewed the evidence of record and first notes that it reflects diagnoses of both DDD and DJD of the cervical, thoracic, and lumbar spine. In addition, there continues to be evidence of a wedge deformity at T12, residuals of which have been indicated to be chronic, and to this extent the Board finds there is also evidence of residuals of thoracic spine fracture. Therefore, the Board finds that the requirement of a current disability has been met with respect to each of the veteran's claims on appeal. The Board further notes, however, that to establish service connection for DDD and other degenerative changes of the cervical and thoracolumbar spine, to include residuals of fracture at T12, there must be competent medical evidence linking these disorders to service. In this regard, while it is true that the April 2004 examiner based his supporting opinion solely on the veteran's report of medical history and further found that some of the veteran's spinal disability was related to the normal aging process, the August 2006 VA examiner did review the veteran's claims folder, including his buddy statements, and concluded that the claimed auto accident could at least as likely as not precipitate a traumatic spinal condition, further explaining that the natural history of a spinal injury compounded by excessive weight gain due to steroids in the treatment of asthma could, over time, aggravate and accelerate degenerative disease processes resulting in the veteran's present spinal condition. In fact, the record also contains the opinion of Dr. Blumberg, who opined that the veteran's long-standing use of steroids also had contributed to his anterior and posterior cervical spine fusions, arthodesis, subsequent lumbar osteopathy, and cervical and lumbar central stenosis, the opinion of Dr. Abrams, who opined that the veteran suffered an auto accident while in the military and that together with the steroids, this precipitated an ongoing metabolic cascade of bone deterioration that was a direct result of the corticosteroids, and the opinion of Dr. Delemarter, who opined that the veteran's issues with massive steroids and asthma were a precipitating event in his ongoing degenerative process. The Board also observes that although early post-service medical records are mostly silent with respect to any complaints relating to the spine, there are records from September 1975 that document complaints and treatment for musculoskeletal pain for which disc and chiropractic consultation was considered. Moreover, there is no evidence that directly contradicts the veteran's buddy statement evidence as to the occurrence of the in-service accident, and no medical opinion evidence that contradicts the supporting opinions of the VA and private examiners noted above. Consequently, the Board finds that the evidence creates a reasonable doubt that must be resolved in the veteran's favor and warrants entitlement to service connection for DDD and other degenerative changes of the cervical and thoracolumbar spine, to include residuals of fracture at T12. ORDER Entitlement to service connection for DDD and other degenerative changes of the cervical and thoracolumbar spine, to include residuals of fracture at T12, is granted. ____________________________________________ C. W. SYMANSKI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs