Citation Nr: 0307726 Decision Date: 04/23/03 Archive Date: 04/30/03 DOCKET NO. 01-07 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel INTRODUCTION The veteran served on active duty from July 1968 to January 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) at Muskogee, Oklahoma. In a May 2002 decision, the Board reopened the claim on the basis of new and material evidence. The Board directed development of the record pursuant to its authority under 38 C.F.R. § 19.9(a)(2) (2002). FINDINGS OF FACT 1. The veteran has been notified of the evidence and information needed to substantiate his claim, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. Currently the veteran is diagnosed with degenerative joint disease and disc disease of the lumbo-sacral spine, post operative. 3. VA and private medical opinions of record indicate that it is at least as likely as not that included in the etiology of the current condition is strain to the low back during service. CONCLUSION OF LAW There is a causal relationship between the low back disability that the veteran currently has and low back injuries that he sustained during his active service. 38 U.S.C.A. §§ 1110, 1111, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304(b) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION i. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000), see 38 U.S.C.A. §§ 5100, 5102- 5103A, 5106, 5107, 5126 (West 2002), (the VCAA), enacted November 9, 2000, contains extensive provisions potentially affecting the adjudication of claims pending before VA as of that date. The statute significantly heightens what were the duties of VA under former law to assist the claimant in development of evidence, and to provide the claimant with certain notices, pertinent to the claim, and it requires that these duties be fulfilled before the claim is adjudicated. Regulations implementing the VCAA have been promulgated. See 66 Fed. Reg. 45,620-32 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002)). The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical and lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must indicate which evidence the claimant is finally responsible for obtaining and which evidence VA will attempt to obtain on the claimant's behalf. Id. Specific guidelines concerning the content of this notice are found in the implementing regulations. 38 C.F.R. § 3.159(b). The VCAA and the implementing regulations require VA to make reasonable efforts to obtain records pertinent to the claim and to notify the claimant if the records could not be secured. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1)-(3). The implementing regulation prescribes the content of the notice that VA must give to a claimant if it is unable to obtain records pertinent to the claim. 38 C.F.R. § 3.159(e). When the records are in the custody of a federal department or agency, the VCAA and the implementing regulations require VA to continue to try to obtain them until it has been successful unless it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2). In addition, the VCAA and the implementing regulations require VA to supply a medical examination or opinion when such is necessary to make a decision on a claim for compensation. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). The claim that the Board will decide on this appeal was pending before VA on the effective date of the VCAA. Therefore, it is a claim to which the VCAA and its implementing regulations apply. See Holliday v. Principi, 14 Vet. App. 280 (2001) (the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim). Explicit review of the provisions of the VCAA and implementing regulations has not been provided to the veteran before now. However, the veteran has not been prejudiced by the lack of review. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). On several occasions, VA has informed the veteran and his representative in writing of the type of evidence that would substantiate this claim. In such notices, it has explained the respective responsibilities of the veteran and VA in the effort to obtain such evidence. VA has secured the medical records and the medical examination and opinion thought necessary to decide the claim other than those submitted or caused to be submitted by the veteran himself. Two VA medical examinations, those of April 2001 and November 2002, have been performed. Through these efforts, VA has developed a record that now permits it to decide the claim. In the decision that follows, the claim is granted. Accordingly, its purposes having been fulfilled, the statute calls for no additional action on the part of VA in conjunction with this claim. 38 U.S.C.A. § 5103A(a)(2). ii. Service connection In general, service connection may be awarded when a veteran has a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The conclusion that a disability is service connected always requires proof by competent evidence of three basic propositions: the existence of current disability, the incurrence or aggravation of an injury or disease during service, and a nexus, or causal relationship, between that in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Furthermore, these essential elements of a service connection claim must be shown by competent evidence, which may be lay or medical depending on the proposition in concern. Grottveit v. Brown, 5 Vet. App. 91 (1993). Although lay evidence is considered competent to establish facts subject to lay understanding, medical evidence is required when the proposition to be proven is medical in nature, such as medical nexus, etiology, or diagnosis. Voerth v. West, 13 Vet. App. 117, 120 (1999). The general elements of a service connection claim may be demonstrated in different specific ways. These include proof based on the post-service diagnosis of the disability in concern. Thus, service connection may be granted for any disease diagnosed initially after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2002). Thus, a claim for VA benefits will be granted unless a preponderance of the evidence of record weighs against it. 38 U.S.C.A. § 5107(b). The veteran contends that he injured his back during service through repeated heavy lifting. His service medical records show that he was seen a number of times for low back problems after entering service in July 1968. In August 1968, the veteran sought treatment complaining that his legs felt hot and numb. The medical record shows that he reported having injured his back in 1967 and experienced back pain associated with his upper legs. No radicular injury was detected, and he was pronounced fit for duty. In January 1969, he was seen for low back pain and diagnosed with low back strain. He was prescribed exercises and a back board and was advised to avoid heavy lifting for one week. During this January 1969 treatment, the medical record shows, the veteran mentioned that he had injured his back in 1967 and improved after being treated by a chiropractor. In March 1969, he was found to have reaggravated the low back strain. In December 1969, he was again seen for low back strain. X-rays of the lumbosacral spine taken on that occasion were within normal limits. In February 1975, he was seen for low back pain. It was noted in the medical record that he had injured his back in 1967 and had experienced minor recurrences of back problems since that time. In February 1976, he was found to have suffered back strain and to be exhibiting spasms in the low back muscles. In the report of a periodic examination performed in March 1978, no abnormalities of the spine were noted. However, the report of the separation examination performed in October 1978 identifies an "abnormal" spine and related musculoskeletal system, albeit with "normal strength and range of motion of the back." This report notes: "Recurrent back support, 1968, due to lifting heavy government equipment, treated with bed rest and bed boards and medications and profile changes, fair results, occasional recurrence of pain in lower lumbar region, last episode of pain, April 1978." Statute and regulation require VA adjudicators to presume if certain facts are present, that a veteran entered active service free of the disease or injury to which the disability for which he or she seeks service connection may be attributable. The presumption of soundness means that a veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time in an examination report (as opposed to a medical history) or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to the service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are considered to be noted. 38 C.F.R. § 3.304(b). A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception of the disorder in concern. 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238, 245 (1994) ("[T]he appellant's account of a prior condition is . . . an inadequate basis upon which the Board could have concluded that he had a condition that preexisted service."). Signed statements of veterans relating to the origin, or incurrence of any disease or injury made in service if against his or her own interest are of no force and effect if other data do not establish the fact. Other evidence will be considered as though such statement were not of record. 38 C.F.R. § 3.304(b)(3). In this case, the veteran is entitled to the presumption of soundness. In the report of his service entrance examination, which was performed in July 1968, no defect of the spine is noted. Rather, and in contrast to that stated in the October 1978 separation examination report, the evaluation of the spine and related musculoskeletal system stated in the service entrance examination report is "normal." In this report, the examining physician referred to an account given by the veteran of having worn a back support in 1967 after having fallen from a height of 10 feet. With that reference, however, the examining physician commented that the veteran's back was "ASX [asymptomatic] now" and was "NCD [not considered disabling]." Because no defect, infirmity, or disorder of the spine is noted in the entrance examination report in the manner prescribed by the regulation, the presumption of soundness has arisen in support of the claim. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Thus, it is presumed that the veteran entered active service free of an injury or disease of the spine of which his back problems during that service were a manifestation. Id. If this presumption is to be rebutted, VA must point to "clear and unmistakable evidence" that an injury or disease of the spine to which his current disability might be attributable "existed prior to service." Crowe, 7 Vet. App. at 245. That is, the burden of rebuttal is on VA and, because clear and unmistakable evidence is required, "[t]he burden is a formidable one." Id. Evidence that may be adduced to rebut the presumption of soundness may include a history given by the veteran as well as "all other material evidence." 38 C.F.R. § 3.304(b)(1); Crowe, 7 Vet. App. at 245-46. Whether the evidence of record that is contrary to the presumption rises to the level of "clear and unmistakable" is a legal determination. Id. In this case, the Board finds that the presumption of soundness arising from the lack of a notation of a spine abnormality in the report of the veteran's service entrance examination is not rebutted by other, clear and unmistakable evidence. The Board's conclusion rests in large part upon recently received medical evidence. Certainly, the record contains statements by the veteran that establish the proposition that he fell on his back and wore a back support within a year before entering active service. However, the veteran is not a competent source of proof of the proposition that he entered active service with a back problem that may be considered part of the etiology of his back problems during service. That conclusion depends on a medical judgment about whether the pre-service injury or condition resolved prior to service - - as the physician's comment in the report of the veteran's service entrance examination indicates - - or was exhibited in the form of the back problems during service. Grottveit; Voerth. Thus, it is necessary to examine medical evidence, including opinion, of record, if any, addressing this question. Included in the record is a letter written to the RO in July 1995 by a chiropractor, D.D. Collins, D.C., referring to treatment that he provided to the veteran in 1967 and 1968. Dr. Collins stated in the letter that his clinic treated the veteran three times a week from November 1967 to January 1968 and on two occasions in May 1968. Dr. Collins described the treatment as "spinal manipulation" and stated that the veteran was "fitted with a lumbo sacral [sic] belt." Dr. Collins averred in this letter that the actual treatment records in concern were not extant. Dr. Collins did not identify in his letter what injury, if any, the veteran had suffered to his spine and what diagnosis, if any, of a spine disorder he carried during the treatment. The report of a VA examination performed in November 2002 refers to the information contained in Dr. Collins' letter by way of reviewing the medical history pertinent to the service connection claim. In this report, the examiner concludes that the medical evidence, including, as well, the service medical treatment and examination reports, is insufficient to establish that the back condition manifested by the veteran during service existed prior to service. Thus, the VA examination report of November 2002 supports, not refutes, the presumption of soundness arising in this case. No other medical opinion of record contradicts the conclusion contained in the November 2002 VA examination report or otherwise refutes the presumption of soundness applicable to the claim. There is of record a medical report provided by Craig Bash, M.D., in February 1998. In that report, Dr. Bash indicated that after reviewing the medical evidence of record, he had formed the opinion that the veteran sustained some type of trauma to his back before service which resolved before he entered service; that his spine examination at his entrance into service was normal and that at his separation from service, abnormal; and that he had strained his back repeatedly during service by lifting heavy objects. Dr. Bash's report does not constitute clear and unmistakable evidence refuting the presumption of soundness applicable to the claim. Also pertinent to the question whether the presumption of soundness has been refuted or not is the report of a VA examination that was performed in April 2001. In this report, the VA examiner concluded that the veteran had sustained a "lower back strain" before service that was "probably aggravated" during service - - this, however, by way of purporting to agree with the findings and conclusion of Dr. Bash. This conclusion does not constitute clear and unmistakable evidence refuting the presumption of soundness applicable to the claim because it is ambiguous: Dr. Bash's conclusion was that the low back problem for which the veteran was treated before service had resolved before service. No other medical documentation of record contains an opinion on the question whether the low back problems that the veteran exhibited during his active service were part of the same condition for which he was treated by Dr. Collins before service. Accordingly, the Board finds clear and unmistakable evidence has not been presented to refute the presumption of soundness that arises in this case. Hence, both a current diagnosis of a low back disorder and injury - - repeated low back strain - - during active service are demonstrated by the evidence of record. In order for service connection to be warranted, there must be medical evidence in the form of an opinion showing that the current low back disorder is causally or etiologically related to the low back problems exhibited during service. Caluza; Voerth. Such a "nexus" opinion has been provided by medical experts on more than one occasion in this case. The Board notes that the issue of nexus has been complicated in this case by medical evidence of post-service injury of the back. This evidence shows that the veteran filed a workmen's compensation claim for an injury (denominated "back strain" in the initial notice to the employer) that he said he sustained in May 1980 in the course of his job, that of automobile mechanic. The medical records supporting the workmen's compensation claim include the report of x-rays of the lumbar spine taken at a non-VA hospital 18 days after the date of the claimed injury. Noting that "no evidence of fracture or dislocation" was found, the report stated an impression of "early degenerative changes in the spine." Also included among the medical records supporting the workmen's compensation claim is the report of a myelogram of the lumbar spine performed at a non-VA hospital approximately one month after the date of the claimed injury. The report stated an impression of "[v]ery large lesion of the right side of the interespace L-4, 5 [sic]." Other non-VA medical records show that the veteran in June 1980 had surgery for a herniated disc at L4-5 on the right and in September 1980, a lumbar laminectomy in September 1980 "at L-4/L-5 on the right, removing a lot of swollen ligamentum flavum, a bony shelf over the l-5 nerve, and . . . a small amount of remaining disc material" with a "foraminotomy for the L-4 root." Other non-VA medical records show that the veteran had several more surgeries for lumbar disc disease during the 1980's and received a diagnosis of lumbar radiculopathy in 1984. This medical evidence, showing that the veteran was found to have degenerative joint disease and degenerative disc disease of the lumbar spine within less than two years after his separation from service, was considered in the medical opinions presented in this case addressing the question of nexus between the back problems exhibited by the veteran during service and his currently diagnosed low back conditions. Thus, the provider of the April 2001 VA examination reported a primary diagnosis of "status post lumbar surgeries including discectomy and laminectomy and five procedures in 1980-1989" along with a secondary diagnosis, of "radiculopathy" leading to "marked weakness of the lower extremities" leading to problems with ambulation and voiding. Otherwise, however, the opinion of the examiner was ambiguous, on the one hand suggesting that the veteran had sustained damage (described as aggravation) to his low back during service and on the other hand noting that there were several years, before and after the veteran's separation from service, during which disc disease was not found. It appears to the Board that the examiner may have been suggesting that the veteran's disc disease was related to the back problems exhibited during service notwithstanding this hiatus, but the report is not clear. The Board notes that a VA examination performed in March 1992 resulted in no opinion concerning the question of nexus. However, other medical opinions in the record do address the question of nexus and are more clear than that of the provider of the April 2001 VA examination. The opinion offered by Dr. Bash in February 1998 was that although "whether there is a causal relationship between the lumbar strains the patient had in service, the abnormal spine condition noted on separation examination, the degenerative arthritis that was already detectable in the spine by x-ray at the time of treatment following his May 1980 injury[,] and the herniated disc disease is difficult to state with certainty," "[i]t is more likely than not that this patient, due to recurrent lumbar strains in service (1969, 1975, 1976[,] an abnormal spine discharge Oct. 1978) developed a slowly progressive degenerative process, which resulted in increased symptomatology with additional strains." Dr. Bash supported his opinion with the following observations: This patient quickly developed accelerated degenerative arthritis as is noted in the x-rays of the spine in May 1980. . . . The lumbar are known to predispose a patient to future ligamentous injury. It is my opinion that the patient's in service injuries resulted in the development of the back pathology noted on his separation examination. This patient went on to develop a "very large lesion" (? Herniated disc) at L4-5 which is most likely secondary to and can not be disassociated from his inservice injuries. Please note that this lumbar strain, the degenerative arthritis, and "very large lesion" all occurred in the same section of the lumbar spine and logically can not be disassociated from each other. Thus, Dr. Bash concluded that the low back problems manifested by the veteran during service were part of the etiology of the current degenerative joint disease and degenerative disc disease afflicting his low back. The opinion offered by the provider of the November 2002 VA examination reached the same conclusion. Like that of Dr. Bash, this opinion reviewed the pertinent medical history documented in the record of the claim. The VA examiner stated: "It is my opinion that the veteran's lower back disability and current lower back condition is at least as likely as not related to repeated chronic heavy lifting activities during military service." The Board finds that the opinions of Dr. Bash and the provider of the November 2002 VA examination prove to a sufficient degree the proposition in concern: that the current low back disabilities with which the veteran suffers, degenerative joint disease and degenerative disc disease, post operative, are etiologically related to the low back problems that he experienced during active service as the result of strain. Accordingly, the Board determines that service connection for the veteran's low back disorder should be granted. 38 U.S.C.A. §§ 1110; 38 C.F.R. §§ 3.303. ORDER The claim of entitlement to service connection for a low back disorder, degenerative joint disease and degenerative disc disease, post operative, is granted. ____________________________________________ BARBARA B. COPELAND 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.