Citation Nr: 0600574	
Decision Date: 01/09/06    Archive Date: 01/19/06	

DOCKET NO.  93-22 464	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, 
California


THE ISSUES

1.  Entitlement to service connection for degenerative disc 
disease of the lumbosacral spine. 

2.  Entitlement to a rating in excess of 20 percent for 
lumbar spine injury residuals. 

3.  Entitlement to a total rating based on individual 
unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Sean Ravin, Attorney


WITNESSES AT HEARINGS ON APPEAL

Appellant and appellant's spouse


ATTORNEY FOR THE BOARD

Milo H. Hawley, Senior Counsel


INTRODUCTION

The veteran had active service from February 1973 to 
February 1976.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from decisions of the Department of 
Veterans Affairs (VA) Regional Office (RO) in San Diego, 
California.  An April 1992 RO decision denied an increased 
rating for the veteran's service-connected low back 
disability.  A January 1993 RO decision denied TDIU and a 
September 1999 RO decision denied service connection for 
degenerative disc disease of the lumbosacral spine.  

The Board remanded the appeal in August 1995.  The veteran 
appealed a July 2003 Board decision denying the issues on 
appeal.  A December 2004 order of the United States Court of 
Appeals for Veterans Claims granted a joint motion, vacating 
and remanding the Board's decision.  Copies of the order and 
joint motion have been included in the claims file.

The appeal, with respect to the issues of an increased rating 
for the service-connected low back disability and TDIU, is 
REMANDED to the RO via the Appeals Management Center (AMC), 
in Washington, DC.  VA will notify the veteran if further 
action is required on his part.


FINDING OF FACT

The veteran currently has degenerative disc disease of the 
lumbosacral spine that is related to trauma sustained during 
his active service.  


CONCLUSION OF LAW

Degenerative disc disease of the lumbosacral spine was 
incurred during active service.  38 U.S.C.A. §§ 1110, 1131, 
5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 
(2005).


REASONS AND BASES FOR FINDING AND CONCLUSION

In light of the Board's grant with respect to the issue of 
service connection for degenerative disc disease of the 
lumbosacral spine, no prejudice to the veteran can occur, 
with respect to this issue, under the Veterans Claims 
Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. 
(West 2002).  

Service connection may be established for disability 
resulting from personal injury suffered or disease contracted 
in line of duty, or for aggravation of preexisting injury 
suffered or disease contracted in line of duty.  38 U.S.C.A. 
§§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may 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 C.F.R. § 3.303(d).

Service medical records reflect that the veteran was seen 
with complaints of back pain following an auto accident in 
April 1974.  July and August 1974 service medical records 
reflect continuing complaints of back pain.  Service medical 
records reflect that in December 1974 the veteran's main 
parachute failed and he was caught up in the lines of his 
reserve chute.  The assessment included rule out fracture of 
a vertebra.  Service medical records indicate ongoing 
complaints of low back pain in March, May, June and August 
1975.

An August 1987 VA X-ray report reflects an impression of 
degenerative disc disease of the L5 - S1 disc.

There is competent medical evidence that supports the 
proposition that the veteran's currently manifested 
degenerative disc disease of the lumbosacral spine is related 
to injury during his active service and that which supports 
the proposition that his degenerative disc disease of the 
lumbosacral spine is unrelated to his active service, 
including any injury during his active service.  The evidence 
against the proposition includes the report of a March 1999 
VA fee-basis examination where the examiner concludes that it 
is not likely that the degenerative disc disease of the 
lumbar spine was caused by the same mechanism of injury 
during a parachute accident when the veteran injured his 
back.  The examiner goes on to offer the opinion that 
degenerative disc disease of the lumbar spine is not due to 
lumbar injury during active service.  This examiner indicates 
that he had reviewed medical records pertaining to the 
veteran, including service medical records.  

Although the report of October 2001 VA fee-basis examination 
indicates that the veteran's disc disease seemed to have 
occurred in the late 1980's, the examiner indicated that it 
was his belief that the parachute injury may have exacerbated 
the veteran's symptoms but were not the cause of his problem.  
In a December 2001 addendum the examiner clarified that he 
did not believe the degenerative disc disease was related to 
the veteran's parachute injury during his active service. 

Evidence in support of the veteran's claim includes the 
report of a March 1997 VA examination, which reflects that 
the examiner had reviewed the veteran's claims file.  The 
examiner concluded that there is a likelihood that the 
veteran's current back symptoms originated during the time he 
served as a paratrooper.  The diagnoses included degenerative 
disc disease of the lumbosacral spine.  

The final evidence which addresses the etiology for the 
degenerative disc disease is testimony and a written opinion 
of Craig Bash, M.D., a private physician, which reflects that 
the veteran's medical records, including service medical 
records, had been reviewed.  The transcript of a November 
2005 personal hearing as well as a November 2005 written 
opinion reflect that it is Dr. Bash's belief that the 
veteran's degenerative disc disease of the lumbosacral spine 
is related to his parachute injury during active service.

Based on the above review it appears to the Board that there 
is competent medical evidence, of approximate equal weight, 
that is both for and against the veteran's claim of service 
connection for degenerative disc disease of the lumbosacral 
spine. Therefore, in resolving all doubt in the veteran's 
behalf, service connection for degenerative disc disease of 
the lumbosacral spine is warranted.


ORDER

Service connection for degenerative disc disease of the 
lumbosacral spine is granted, subject to the laws and 
regulations governing the payment of monetary benefits.


REMAND

It does not appear that the RO has had the opportunity to 
provide the veteran with changes relating to the evaluation 
of low back disabilities that occurred in September 2002 and 
September 2003.  Further, the record does not reflect that 
the veteran has been provided a VCAA notice which 
specifically identifies TDIU or which specifically addresses 
the veteran's service-connected low back disability in light 
of the Board's above grant of degenerative disc disease of 
the lumbosacral spine.  

In light of the above, the appeal is REMANDED to the RO for 
the following:

1.  The veteran should be provided a VCAA 
notification in accordance with 
Pelegrini v. Principi, 18 Vet. App. 112 
(2004), regarding his claims for TDIU and 
an increased rating for lumbar spine 
injury residuals including degenerative 
disc disease of the lumbosacral spine.

2.  The veteran should be afforded a VA 
examination to determine the nature and 
extent of his service-connected lumbar 
spine injury residuals, including 
degenerative disc disease of the 
lumbosacral spine.  The claims file must 
be made available to the examiner for 
review and the examination report should 
reflect that such review is accomplished.  
The examiner is requested to identify all 
symptoms that are related to the 
veteran's service-connected lumbar spine 
injury residuals, including degenerative 
disc disease of the lumbosacral spine.  

The examiner is requested to set forth in 
degrees of excursion any limitation of 
motion of the veteran's low back that is 
related to his service-connected lumbar 
spine injury residuals including 
degenerative disc disease of the 
lumbosacral spine.  The examiner is also 
requested to:  (1) Express an opinion as 
to whether pain that is related to the 
veteran's service-connected lumbar spine 
injury residuals, including degenerative 
disc disease of the lumbosacral spine, 
could significantly limit the functional 
ability of the low back during flare-ups 
or when the low back is used repeatedly 
over a period of time, and express these 
determinations, if feasible, in terms of 
the additional loss of range of motion 
due to pain on use or during flare-ups; 
and (2) determine whether as a result of 
the service-connected lumbar spine injury 
residuals, including degenerative disc 
disease of the lumbosacral spine, the low 
back exhibits weakened movement, excess 
fatigability, or incoordination, and 
express these determinations, if 
feasible, in terms of the additional loss 
of range of motion due to any weakened 
movement, excess fatigability, or 
incoordination.  If the examiner is 
unable to offer an opinion with respect 
to whether or not these factors result in 
additional loss of range of motion, it 
should be so stated.  

The examiner should state whether there 
are any abnormal neurological findings 
pertaining to the lumbar spine injury 
residuals, including degenerative disc 
disease of the lumbosacral spine, i.e., 
symptoms compatible with sciatic 
neuropathy, such as characteristic pain 
and demonstrable muscle spasm or absent 
ankle jerk.  The examiner should state 
the frequency, severity, and duration of 
the attacks of the symptoms, if present.

The examiner is also requested to 
indicate whether the lumbar spine injury 
residuals, including degenerative disc 
disease of the lumbosacral spine, results 
in incapacitating episodes, which are 
defined as a period of acute signs and 
symptoms due to intervertebral disc 
syndrome that requires bed rest 
prescribed by a physician and treatment 
by a physician.  If incapacitating 
episodes are identified, the examiner is 
requested to indicate the total duration 
of episodes and the frequency of 
episodes.  

The examiner is also requested to offer 
an opinion as to whether it is at least 
as likely as not that the veteran's 
service-connected lumbar spine residuals, 
including degenerative disc disease of 
the lumbosacral spine, causes the veteran 
to be unable to obtain and retain 
substantially gainful employment

3.  Thereafter, the RO should 
readjudicate the issues remaining on 
appeal with appropriate consideration of 
changes to the rating criteria, including 
for intervertebral disc syndrome, as 
applicable, effective September 23, 2002.  
67 Fed. Reg. 54,345-54,349, August 22, 
2002.  Appropriate consideration should 
also be given to changes to rating 
criteria for evaluating the spine, 
effective September 26, 2003.  68 Fed. 
Reg. 51,454-51,458 (August 27, 2003).  If 
the claim remains denied, the veteran and 
his representative should be provided 
with a supplemental statement of the case 
and afforded the appropriate period of 
time to respond thereto.  

Thereafter, the case should be returned to the Board, if in 
order.  The Board intimates no opinion as to the ultimate 
outcome of this case.  The veteran need take no action unless 
otherwise notified.  

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 
U.S.C. §§ 5109B, 7112).




	                     
______________________________________________
	WAYNE M. BRAEUER
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs