Citation Nr: 0723247 Decision Date: 07/27/07 Archive Date: 08/06/07 DOCKET NO. 95-05 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Appellant, and a friend of the appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran had active duty for training from October 1984 to April 1985. He served on active duty from April 1986 to June 1990. A Department of Veterans Affairs (VA) administrative decision dated in July 1993 determined that the veteran's other than honorable discharge from the military in June 1990 was not a bar to VA benefits. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 1993 rating decision by the VA Regional Office (RO) in San Diego, California. The veteran has since moved, and his file is now maintained by RO in Nashville, Tennessee. In March 1997, and again in November 2003, the Board remanded this claim to the RO for additional development. The case has been returned to the Board and is ready for further review. FINDINGS OF FACT 1. The veteran's cervical spine disorder clearly and unmistakably existed prior to entry into service. 2. The veteran's cervical spine disorder clearly and unmistakably was not aggravated during service. CONCLUSION OF LAW 1. A cervical spine disorder clearly and unmistakably preexisted service, and the presumption of soundness is rebutted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. §§ 3.303, 3.304(b) (2006). 2. A cervical spine disorder was not aggravated during the veteran's active duty military service. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service, and for some disorders service connection may be granted if they are manifested to a compensable degree within the first post service year. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R §§ 3.307, 3.309 (2006). Generally, veterans are presumed to have entered service in sound condition as to their health. See 38 U.S.C.A. § 1111 (West 2002); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of sound condition provides: [E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; see also 38 C.F.R. § 3.304(b) (2006). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby, 1 Vet. App. at 227. During the appeal, there has been a change in the interpretation of the law with respect to the adjudication of claims involving pre-existing conditions and the application of the presumption of soundness. Essentially, under 38 U.S.C.A. § 1111, as interpreted by Cotant v. Principi, 17 Vet. App. 116 (2003), and VAOPGCPREC 3-2003 (July 16, 2003), to rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The burden of proof is on the government to rebut the presumption of sound condition upon induction by clear and unmistakable evidence showing that the disorder existed prior to service, and if the government meets this requirement, by showing that the condition was not aggravated in service. Vanerson v. West, 12 Vet. App. 254, 258 (1999); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The United States Court of Appeals for Veterans Claims (hereinafter, "the Court") has defined the word "unmistakable" as an item cannot be misinterpreted and misunderstood, i.e., it is undeniable." Vanerson, 12 Vet. App. at 258 (quoting WEBSTER'S NEW WORLD DICTIONARY 1461 (3rd Coll. Ed. 1988)). See also Crippen v. Brown, 9 Vet. App. 412 (196). The presumption of aggravation may only be rebutted if "there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 C.F.R. § 3.303(a) (2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Pre-existence The service medical records show that at service entrance in April 1986, there is no reference to cervical spine disorder. Thus, the veteran is entitled to a presumption of soundness. The Board has carefully reviewed the evidence of record, including the veteran's arguments, and finds that a cervical spine disorder clearly and unmistakably existed prior to entrance into service in 1986. It is not contended or shown that the veteran had any neck problems prior to, or during, his active duty for training from October 1984 to April 1985. The Board must next determine whether, under 38 U.S.C.A § 1111 and 38 C.F.R. § 304(b), there is clear and unmistakable evidence that a disease or injury existed prior to service. The Board finds that a cervical spine disorder clearly and unmistakably pre-existed service. The Board notes that the service medical records reflect that in June 1988, the veteran gave a history of trauma to the back after a high school football injury, and private records confirm that he was treated in October 1978 when he hurt his back playing football. Although the October 1978 notation refers to a strained shoulder, the 1978 records say nothing about a neck injury or complaints. Private records show that in July 1993 and again in March 1994, the veteran reported a history of an injury to the back in 1978. Further in his November 1994 substantive appeal, the veteran stated that his injury to his lower back occurred during service, and not before, and that he had had an injury to the upper back before the military, which lasted for approximately two weeks. He did not, however, mention a neck injury. Private records dated in June 1985, before the veteran's active service beginning in April 1986, show that he was involved in an automobile accident a few days prior and was complaining of increasing neck pain. He was admitted to a private hospital. Examination showed marked muscle spasm in the neck, greater on the right. The pertinent impression when he was discharged six days later was cervical muscle strain. The veteran has also reported that he had a neck injury in a motor vehicle accident prior to service. (See, November 2002 VA examination report). The Board finds that service medical records and private medical records, as well as the veteran's statements, establish by clear and unmistakable evidence that a cervical spine injury and disorder existed prior to his entry into service in April 1986. The injury prior to service entrance is documented by medical records, which substantiate treatment for cervical spine injury prior to military service. The veteran has indicated that such injury occurred. The Board gives such findings high probative value. The Board has reviewed the entire evidence of record and is left with the distinct conclusion that the veteran had an injury to the cervical spine prior to his service and that a cervical spine disorder clearly and unmistakably existed prior to service for the reasons stated above. B. Aggravation The Board has determined that a cervical spine disorder clearly and unmistakably existed prior to service. The next question is whether a cervical spine disorder was aggravated during service. See VAOPGCPREC 3-2003 (July 16, 2003) (to rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service). The Board has carefully reviewed the evidence of record and finds that the pre-existing cervical spine disorder clearly and unmistakably was not aggravated during service. Although the veteran seems to indicate that he injured his cervical spine in service (see statement of December 1993, testimony of April 1995), the service medical records do not show that the veteran was treated in service for cervical spine complaints or otherwise refer to such complaints. In fact, although the veteran appears to suggest that he sustained upper back injury, rather than lower back injury, in September 1989 (see December 1993 statement), the service records show that he was treated in September 1989 for low back complaints. He had X-rays of the spine performed and those of the cervical spine were normal. At separation in June 1990, he gave a history of back pain, but clinical evaluation of the spine was then normal. A reference to cervical spine problems after service does not occur until August 1992, when a chiropractor examined the veteran for a work related back injury, and cervical sprain/strain was among the diagnoses. In July 1993, on qualified medical examination for Workers Compensation for evaluation of the veteran's work-related injury to the low back in 1992, cervical strain was again among the diagnoses. The veteran was examined by VA in November 2002. The examiner noted that the medical records and claims file were reviewed. The veteran's history was noted and he was examined. The examiner found that given the veteran's somewhat complicated history of three spine injuries from 1978 and again in 1984 and sometime around 1985, it is difficult to specifically ascertain the exact etiology of his current pain. It was stated that as to the cervical spine X- rays, it is more likely than not that the condition is not associated with the veteran's military services. It was opined that it was from a previous motor vehicle accident, and the veteran did not report complaints of exacerbation of that while in the service. VA MRI report of the cervical spine dated in June 2005 shows broad-based and slight rightward bulging of the C5-6 disc and mild degenerative bone change. The Board finds there is no competent medical evidence of record showing that the veteran's pre-existing cervical spine disorder increased during service. First, the evidence shows no indication of any neck injury or disability in the service medical records. See, Jensen v. Brown, 19 F.3d1413, 1417 (Fed. Circ. 1994). While the veteran reported having a history of back pain at separation, it is not specified that he had neck pain, and examination of the spine was normal. The service records do show treatment for low back pain on multiple occasions, and the veteran is currently service- connected for a low back disorder. Additionally, in making this determination, the Board finds especially probative that the first time the veteran is shown to have problems related to neck disability after service is in 1992, which coincides with a work-related accident in which he sustained a back injury. The absence of any documented complaints or treatment in service or for about two years thereafter militates against a finding that the veteran had in-service neck complaints resulting in the aggravation of a neck chronic disorder, and also rebuts any assertion an increase in severity of disability during service. See Maxson v. Gober, 230. F.3d 1330 (Fed. Cir. 2000. Further a VA examiner has stated that the veteran's cervical spine disorder was not exacerbated in service. This opinion was rendered after examining the veteran and reviewing the claims file, and stands uncontradicted in the record. Thus the Board finds that the veteran's pre-existing cervical spine disorder was not aggravated during service. The Board notes the veteran has been diagnosed with degenerative disease of the cervical spine, which is a one of the chronic diseases for which presumptive service connection can be granted under 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). However, in order for presumptive service connection to apply, the arthritis must be manifested within one year after the date of the veteran's separation from service. See 38 C.F.R. § 3.307(a). Here, the Board notes the veteran's arthritis diagnosis was rendered several years after he was discharged from service. Therefore, service connection on a presumptive basis is not warranted in this case. Duties to Notify and Assist VA has certain duties to notify and to assist claimants concerning the information and evidence needed to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159 and 3.326(a). VA must notify the claimant (and his or her representative, if any) of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide, and (4) VA must ask the claimant to provide VA with any evidence in his or her possession that pertains to the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The initial denial of this claim occurred in September 1993, which is years before the current duties to notify and assist the claimant were enacted in November 2000. The Court acknowledged in Pelegrini at 120 that where, as here, the section 5103(a) notice was not mandated at the time of the initial RO decision, the RO did not err in not providing such notice. Rather, the appellant has the right to content- complying notice and proper subsequent VA process, which he has received. The VA Appeals Management Center's May 2004 letter described the evidence needed to support the veteran's claim for service connection. This notice informed the veteran of what the evidence must show to establish entitlement, what had been done on his claim, what information or evidence VA needed, what the veteran could do to help with his claim, when and where to send information or evidence, and VA's duty to assist him. He was also told to provide any evidence or information he had pertaining to his appeal. This letter was in compliance with Quartuccio. He was also sent a notice letter in December 2005. The requisite notice was ultimately provided to the appellant before the final transfer and certification of the case to the Board, and he had ample time in which to respond to the notice letter. Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). The appellant has had a "meaningful opportunity to participate effectively" in the processing of his claim. Mayfield, Id. The Board finds that the present adjudication of the issues on appeal will not result in any prejudice to the appellant. On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. A supplemental statement of the case, which included properly informing the veteran in this regard, was sent in February 2007. In addition, the duty to assist the veteran has also been satisfied in this case. The appellant has been examined and service records, VA records and private records have been obtained. VA has attempted to obtain all the records that he has identified that could be pertinent to his claim. There is no indication that there are any outstanding, available, pertinent records. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. ORDER Service connection for a cervical spine disorder is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs