Citation Nr: 0215481 Decision Date: 11/01/02 Archive Date: 11/14/02 DOCKET NO. 00-12 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. R. Steyn, Counsel INTRODUCTION The veteran had active military service from August 1944 to December 1945. This appeal arises before the Board of Veterans' Appeals (Board) from a March 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the veteran's claim seeking entitlement to service connection for back and bilateral leg pain as secondary to the service-connected pes planus and scars of the right arm. FINDING OF FACT The veteran's degenerative disc disease of the spine with scoliosis increased in severity as a result of his service- connected pes planus. CONCLUSION OF LAW Service connection for degenerative disc disease of the spine with scoliosis is warranted. 38 U.S.C.A. §§ 1110 (West Supp. 2002); 38 C.F.R. §§ 3.303, 3.310 (2001). REASONS AND BASES FOR FINDING AND CONCLUSION Background In a January 1946 rating decision, the veteran was granted service connection for bilateral pes planus, third degree, and assigned a 10 percent rating. Dr. D. R. wrote a letter in November 1998. He stated that the veteran was a long time patient of his and suffered from leg and foot pain which had resulted in back and leg pain. He stated that this condition had deteriorated in the last year and that the veteran now suffered from right arm tremors. In a March 1999 rating decision, the veteran's rating for pes planus was increased to 30 percent. Dr. D. R. wrote a letter in November 1999. He wrote that the veteran suffered from chronic foot pain which aggravated his back condition. He stated that the veteran had an uneven gait which caused more pressure on his low back. He stated that the veteran's back pain was an ongoing condition which he routinely took medication for. The veteran was afforded a VA examination in January 2000. The examiner's impression was low back pain. He did not believe it was possible to say that the veteran's low back condition was caused entirely by flat feet, but did think that certainly the veteran's altered gait and pes planus had contributed to his low back pain to an extent, although it was impossible to say to what percentage. VA x-rays noted slight scoliosis of the spine, and degenerative changes with osteophyte formation. In a March 1999 rating decision, the RO increased the veteran's rating for pes planus to 30 percent. The veteran underwent a VA examination in June 2002. The examiner's impression was that the veteran The examiner commented that the veteran's x-rays confirmed a mild scoliosis, as well as mild degenerative disc disease and an osteopenia in the lumbar spine. The examiner's impression was that the veteran's back conditions could not be related to his pes planus, as there was no medical evidence in the literature supporting that evidence on a scientific basis. The examiner did not deny that the veteran had back pain and had developed back problems throughout his lifetime, but did not think that those problems were connected to the veteran's flatfoot problem. Analysis As a preliminary matter, on November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), was enacted. Pub. L. No. 106-475, 114 Stat. 2096 (2000); see 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001). Among other things, the VCAA amended 38 U.S.C.A. § 5103 to clarify VA's duty to notify claimants and their representatives of any information that is necessary to substantiate the claim for benefits. The VCAA also created 38 U.S.C.A. § 5103A, which codifies VA's duty to assist, and essentially states that VA will make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. Implementing regulations for the VCAA were subsequently enacted, which were also made effective November 9, 2000, for the most part. 66 Fed. Reg. 45,620 (Aug. 29, 2001) to be codified at 38 C.F.R. §§ 3.102, 3.159). The intended effect of the implementing regulations was to establish clear guidelines consistent with the intent of Congress regarding the timing and scope of assistance VA will provide to claimants who file a claim for benefits. 66 Fed. Reg. 45,620 (Aug. 29, 2001). Both the VCAA and the implementing regulations are applicable in the present case, and will be collectively referred to as "the VCAA." While the VCAA was enacted during the pendency of this appeal, and was not specifically applied by the RO, there is no prejudice to the appellant in proceeding with this appeal, because the requirements under the VCAA have been satisfied. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (when the Board addresses a matter not addressed by the RO, the Board must provide an adequate statement of reasons and bases as to why there is not prejudice to the appellant). In that regard, the RO notified the veteran of the reasons for its decision, as well as the laws and regulations applicable to his claim. This information was provided in the May 2000 Statement of the Case, as well as in the June 2002 Supplemental Statement of the Case. In these documents, the RO also provided notice of what evidence it had considered. The veteran has been asked to provide VA with information about other evidence that might be available, and was told VA would assist him in obtaining additional evidence, such as private medical reports and reports from federal agencies. In short, the RO has informed the appellant what information and evidence the appellant was to provide to VA and what information and evidence the VA would attempt to obtain on behalf of the appellant. 38 C.F.R. § 3.159 (b) (2001); Quartuccio v. Principi, 16 Vet.App. 183 (2002). In view of the extensive development that has been undertaken in this claim over a period of over nine years, further development is not needed to comply with VCAA. The veteran has been informed of the information and evidence needed to substantiate his claim, and he has been made aware of how VA would assist him in obtaining evidence and information. He has not identified any additional, relevant evidence that has not been requested or obtained. For the aforementioned reasons, there is no reasonable possibility that further assistance would aid in the substantiation of the claim. In short, the requirements under the VCAA have been met. Under the applicable law and VA regulations, in order to establish service connection, the evidence must demonstrate that the current disability is the result of a disease or injury that either began in or was aggravated by service. 38 U.S.C.A. § 1110 (West Supp. 2002); 38 C.F.R. § 3.303 (2001). Service connection also is appropriate for a disorder diagnosed after discharge when evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d) (2001) A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2001). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (b) (West Supp. 2002). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2001). As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Winsett v. West, 11 Vet. App. 420 (1998) (Court affirmed the Board's decision which weighed two medical opinions, from an expert and a treating physician); Owens v. Brown, 7 Vet. App. 429, 433 (1995) (Board favoring one medical opinion over another is not error). In Allen v. Brown, 7 Vet.App. 439 (1995), the United States Court of Appeals for Veterans Claims (Court) held that service connection may be granted on the basis of aggravation of a non service-connected disability. The veteran claims that his low back disorders are secondary to or aggravated by his service-connected pes planus. There are several medical opinions regarding this matter. Two of the opinions contend that the veteran's pes planus aggravated his back condition, and one opinion asserts that the pes planus and the back condition were unrelated. The veteran's private doctor, Dr. D. R., wrote that the veteran's chronic foot pain aggravated his back condition, and that his uneven gait caused more pressure on his low back. A VA examiner stated in January 2000 that the veteran's altered gait and pes planus had contributed to his low back pain to an extent. However, a VA examiner in June 2002 opined that the veteran's back problems (mild scoliosis, degenerative disc disease, and an osteopenia in the lumbar spine) could not be related to the veteran's pes planus as there was no medical evidence in the literature to support that evidence on a scientific basis. The June 2002 examiner states that there is no scientific evidence showing a relation between pes planus and the development of back problems. However, the veteran's physician and the January 2000 examiner also provide reasons for their opinions that there is a correlation between the veteran's pes planus and his back disorders. They contend that the veteran's pes planus caused altered gait, and the altered gait aggravated the veteran's back problems. At the very least, the conflicting opinions represent an approximate balance of positive and negative evidence regarding the veteran's claim. Accordingly, granting the veteran the benefit of the doubt, and pursuant to Allen v. Brown, 7 Vet.App. 439 (1995), service connection is warranted for a low back disability, diagnosed as degenerative disc disease with scoliosis. 38 U.S.C.A. § 5107 (b) (West Supp. 2002) ORDER Entitlement to service connection for degenerative disc disease with scoliosis is granted. G. H. Shufelt Member, 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.