Citation Nr: 0316212 Decision Date: 07/17/03 Archive Date: 07/22/03 DOCKET NO. 97-10 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a chronic low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.A. Howell, Counsel INTRODUCTION The veteran served on active duty for 23 years and retired in March 1996. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the claim on appeal. FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the veteran in the development of the claim and has notified him of the information and evidence necessary to substantiate his claim. 2. The veteran entered military service with a congenital defect of the spine, spondylolysis. 3. He sustained multiple back injuries during 23 years of active duty and was treated on several occasions for lumbosacral strain. Radiology reports reflect diagnoses of spondylolysis with grade I spondylolisthesis at L4-L5. 4. A post-service X-ray report shows spondylolisthesis with probable spondylolysis at L4-L5. 5. A current back disability resulted from a pre-existing defect of the back, which was subject to superimposed injury during service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the veteran, a chronic low back disorder was incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1111, 1113, 1131, 1153, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2002); VAOPGCPREC 82-90 (July 18, 1990). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends, in essence, that he is entitled to service connection for a low back disorder. At a personal hearing in August 2000, he maintained that he had no problems with his back prior to entering the military, that he injured his back in July 1982, and that he has continued to experience back pain since the time of the injury. Relevant Law and Regulations. Under the relevant law and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2002). However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2002). Further, service connection may also 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2002). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Moreover, a veteran is presumed to be in sound condition at entrance to service except for disorders noted at entrance or where clear and unmistakable evidence rebuts the presumption of sound condition for disorders not noted at entrance. History provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a pre-existing condition. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b)(1) (2002); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). A pre-existing injury or disease will be considered to have been aggravated by service where there is an increase in the disability during service, unless there is a specific finding that the increase is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2002). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progression of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2002). Moreover, "temporary or intermittent flare-ups of a pre- existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Nonetheless, silence of the record on this point may not be taken as indication of no aggravation, an opinion must be provided. See Verdon v. Brown, 8 Vet. App. 529 (1996); Wisch v. Brown, 8 Vet. App. 139 (1995). Further, such medical questions must be addressed by medical experts. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Next, congenital or developmental defects are not considered diseases or injuries under the law. 38 C.F.R. § 3.303(c). Service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306 (2002). With regard to congenital or developmental defects, service connection may not be granted for a defect, although service connection may be granted for a disability which is shown by the evidence to have resulted from a defect which was subject to a superimposed disease or injury during service. See VAOPGCPREC 82-90 (July 18, 1990). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As an initial matter, the Board finds that no pre-service medical records are associated with the claims file. The veteran has testified that he had no problems with his back prior to military service. Further, it is undisputed that the veteran's March 1973 entrance examination did not mention a pre-existing back disorder and the clinical evaluation of his spine was normal. For that reason, he is entitled to the presumption of soundness. Nonetheless, even finding that the presumption of soundness attached at the time of induction, the Board finds, by clear and unmistakable evidence, that the veteran suffered from a pre-existing, congenital low back disorder (spondylolysis) prior to his entry into military service. Specifically, at the time of his initial back injury in June 1982, he was diagnosed with "spondylolysis and first degree spondylolisthesis at L4-L5." As a matter of judicial notice, spondylolisthesis is defined as a "forward displacement of one vertebra over another, usually the fifth lumbar over the body of the sacrum, or the forth lumbar over the fifth, usually due to a developmental defect in the pars interarticularis." Dorland's Illustrated Medical Dictionary 1563 (28th ed. 1994). Spondylolysis is a defect of the pars interarticularis, and it is the most common cause of spondylolisthesis and is sometimes called isthmic spondylolisthesis. Id. While there is some debate about whether spondylolysis is a congenital defect (present at birth) or whether it develops in childhood from a stress fracture that never completely heals, the disorder, by definition, occurs at birth or in childhood and necessarily pre-existed military service. Moreover, the treating military physician noted that the veteran had an "incidental congenital laminar defect." Under 38 C.F.R. § 3.303(c), there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Accordingly, the Board concludes that there is clear and unmistakable evidence that the veteran had a pre- existing defect of the spine, namely spondylolysis, when he entered service in 1973 and the presumption of soundness is overcome. Having found that the veteran had a pre-existing, congenital low back disorder prior to entering military service by clear and unmistakable evidence, the Board notes that congenital or developmental defects are generally not service-connected because they are not injuries under VA law and regulations. 38 C.F.R. § 4.9 (2002). However, congenital or development defects may be service-connected when a superimposed injury occurs during, or as a result of, active service. VAOPGPREC 82-90 (July 18, 1990). In this case, the Board finds that the veteran's in-service diagnosis of spondylolisthesis (an acquired disorder) was superimposed on his congenital defect (spondylolysis). The Board concludes that, in the context of this particular case, the lay evidence is sufficiently credible and probative of a chronic back disability existing as a result of a pre- existing back defect, which was subject to superimposed injuries during service, so that the positive and negative evidence are at least in equipoise, allowing the benefit of the doubt to be granted in favor of the claimant. As noted above, the evidence as a whole shows that the veteran entered service with a pre-existing defect of the spine, spondylolysis. As a result, his intrinsically weak lumbar structure was a risk factor for the development of superimposed lumbar strain and spondylolisthesis. See THE MERCK MANUAL, § 5, Ch. 62, pp 504-505 (17th ed. 1999). To that end, the Board notes that service medical records show that the veteran was initially treated for back pain as the result of a twisting injury beginning in 1982. Thereafter, he sought treatment for chronic low back pain periodically throughout his remaining military career. Moreover, he submitted a statement from a fellow soldier indicating that he injured his back while undergoing physical conditioning in 1982. X-ray evidence at that time reflected a diagnosis of spondylolysis and first degree spondylolisthesis at L4-L5. An X-ray report dated in July 1995, shortly prior to discharge, showed a diagnosis of spondylolysis and spondylolisthesis at L4-L5 with degenerative disc disease and possible herniated nucleus pulposus. Within months of service separation, a X-ray report indicated a diagnosis of spondylolisthesis with probable spondylolysis at L4-L5. Further, a November 1996 MRI report reflected a diagnosis of degenerative disc disease, degenerative spondylolisthesis at L4-L5, and an acquired L4 intervertebral foraminal stenosis. Although the veteran had a congenital back disorder prior to service at L4-L5 (spondylolysis), he sustained a back injury at the level of L4-L5 during military service and was diagnosed with spondylolisthesis (an acquired disorder). Further, post-service medical evidence shows the presence of degenerative changes at L4-L5 and indications of acquired intervertebral foraminal stenosis. Accordingly, resolving the benefit of the doubt in favor of the claimant, the Board finds that service connection should be granted for a back disability, which is shown by the evidence to have resulted from a congenital defect, which was subject to superimposed injury during service. VAOPGCPREC 82-90 (July 18, 1990). Finally, during the pendency of this appeal, there was a significant change in the law. Specifically, on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which, among other things, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The law is applicable to all claims filed before the date of enactment but not yet final as of that date. See 38 U.S.C.A. § 5103A (West 2002). Additionally, in August 2001, VA issued regulations implementing the provisions of VCAA "to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits." See 66 Fed. Reg. 45620-45632 (Aug. 29, 2001). Inasmuch as the Board is allowing the benefit sought on appeal, the veteran will not be prejudiced by the Board's decision even if the notice and duty to assist provisions contained in the new law have not been completely satisfied. Therefore, no further action is necessary under the mandate of the VCAA. ORDER The claim for entitlement to service connection for a chronic low back disorder is granted. ____________________________________________ BETTINA S. CALLAWAY Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.