Citation Nr: 0812817 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 04-34 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to service-connected residuals of a fracture of the left tibia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca N. Poulson, Associate Counsel INTRODUCTION The veteran served on active duty in the Army from February 1983 to February 1986 and in the Coast Guard from July 1987 to March 1994. This matter is before the Board of Veterans' Appeals (Board) from a March 2003 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied service connection for a low back disability. The veteran timely filed a Notice of Disagreement (NOD) in June 2003. The RO provided a Statement of the Case (SOC) in July 2004 and thereafter, in August 2004, the veteran timely filed a substantive appeal. In January 2008, the veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder, which reflects that the Board would keep the record open for a period of 60 days for the submission of additional evidence. See Hearing Transcript at 2. During the January 2008 hearing, the veteran contended that his claim for service connection for a low back disability should include as secondary to his service-connected residuals of a fracture of the left tibia. Specifically, the veteran stated that complications from the left tibia fracture, to include a left knee disability and an altered gait, caused his back disability. With respect to a claim for secondary service connection, the Board notes that separate theories in support of a claim for benefits for a particular disability does not equate to separate claims for benefits for that disability. Although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim. See Robinson v. Mansfield, 21 Vet. App. 545 (2008). However, the duties to notify and assist with respect to the secondary service connection aspect of the claim, to include notification of the applicable law, must be satisfied. 38 C.F.R. §§ 3.159, 3.310 (2007). This matter is addressed in the remand below. The Board also notes that in January 2002, the veteran filed a claim for service connection for a left knee condition. The RO deferred service connection for this issue in October 2002 and January 2003. However, as service connection is in effect for residuals of a fracture of the left tibia with involvement of the ankle and knee (see, e.g., June 2004 RO rating decision), any functional impairment of the knee will be considered in rating the residuals of the left tibia fracture. During the hearing, the veteran also raised an informal claim of service connection for a right foot disability, to include post-operative residuals of a bunionectomy. Specifically, the veteran testified that he filed a claim for service connection for his right foot several years ago but never received a decision from the RO. The Board notes that in January 2002, the veteran filed a claim for service connection for a bunionectomy. The RO initially deferred service connection for bilateral hallux valgus, status post residuals of bunionectomy, in October 2002 and January 2003. In a March 2003 decision, the RO denied service connection for status post right bunionectomy. The veteran, however, failed to file an NOD. Under these circumstances, the veteran's most recent statement on the matter raises an informal application to reopen the claim, which is referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that additional development is warranted to address the merits of the appellant's appeal for entitlement to service connection for a low back disability, to include as secondary to service-connected residuals of a fracture of the left tibia. 38 C.F.R. § 19.9 (2007). A summation of the relevant evidence is set forth below. a. Factual Background Service Medical Records A December 1982 Report of Physical Examination for Enlistment discloses a normal clinical assessment of all systems, to include the spine. The accompanying Report of Medical History indicates that the veteran had no recurrent back pain. An April 1987 Report of Physical Examination for Enlistment also discloses a normal clinical assessment of all systems, except for asymptomatic pes planus. In the accompanying Report of Medical History, the veteran again stated that he did not have recurrent back pain. A July 1987 training examination Report of Medical History also indicates that the veteran denied having recurrent back pain. The veteran's January 1994 Report of Physical Examination for Discharge reveals a normal clinical assessment of the spine. However, in the Report of Medical History, he claimed to have back problems and recurrent back pain. The clinician noted that the veteran reported lower back pain with bending and stooping "NCD." As noted above, the veteran was on active duty from March 1983 to March 1986 and again from July 1987 to March 1994, for total active duty of approximately 9 & 1/2 years. In- service treatment records reveal that the veteran complained of back pain in August 1983 after being injured three days prior. There was sensitivity to touch. Range of motion was "good" and strength testing was normal. The pertinent assessment was lower back strain. The clinician prescribed Motrin and hot soaks. In January 1984, the veteran complained of lower back pain for two months' duration. Upon examination, the clinician noted increased lumbar lordosis. There was full range of motion. An X-ray revealed mild left convex scoliosis and L-5 within normal limits but "[illegible] a L3-L5 [illegible]." The impression was mild lower back pain. A few days later, the veteran complained of lower back pain for one week's duration. The impression was back strain. The clinician recommended no sports activities for five days. On February 8,1984, the veteran reported back pain for six months' duration after hitting it. Upon examination, the clinician noted "back flexion good N-M normal." An X-ray was within normal limits. The impression was lumbosacral sprain. Service treatment records confirm that the veteran was involved in a motorcycle accident on February 29, 1984. At the time, the veteran complained of left leg pain and numbness of all toes. X-rays revealed an open fracture of the left tibia. He was admitted to the hospital for an incision and drainage of the left tibia and application of a splint. The veteran was discharged two weeks later. In February 1985, the veteran complained of neck and back pain after a fall. Upon examination, tenderness in the right [illegible] was noted. There was full range of motion. An X-ray revealed scoliosis convex to the left with the apex of the curve at L3. There was no evidence of spondylolisthesis, spondylolysis, or other osseous abnormalities. The impression was cervical strain. The clinician prescribed ice and massage. In August 1988, the veteran complained of a sore back, which he attributed to playing basketball the previous day. The clinician noted a spasm to the right lumbar-dorsal area with an associated decrease in range of motion. The assessment was spasm of the lumbar-sacral area. A July 1989 in-service X-ray revealed marked scoliosis. The assessment was scoliosis with mechanical back pain. The veteran was referred to physical therapy for flexibility exercises. In December 1989, the veteran complained of lower back pain of one day's duration after playing basketball. He denied any injury or known method of trauma. He also denied any past history of back problems. The clinician noted tenderness and the presence of scoliosis. In December 1992, the veteran complained of a backache of two weeks' duration. The clinician noted that the range of motion was "good." There was mild tenderness at T7-L1 with spasm. He prescribed rest. During a November 1993 service examination, the veteran reported several years of lower back pain. The veteran related that in the past month he had experienced hip pain. Upon examination, the clinician noted scoliosis and "[illegible] side of back in lumbar area." There was no tenderness upon palpation. A lumbar X-ray was within normal limits. The assessment included soft tissue back/hip strain. He was prescribed medication. In February 1994, while still on active duty, the veteran complained of chronic lower back pain since the motorcycle accident, as well as lumbosacral tightness after short interval bending. He also reported left knee pain and indicated that he thought his knee problem was "related to compensating for back pain per radiologist, verbally." Upon examination, there was forward flexion to 80 degrees with pain, backward bending to 30 degrees with pain, side bending (left) to 25 degrees with pain, side bending (right) to 35 degrees with pain, straight leg raising to 80 degrees bilaterally with pain, and rotation to 80 degrees bilaterally with pain. He received restricted duty for thirty days. February 2003 VA Spine Examination The veteran complained of lower back pain since 1983. He indicated that his back "trouble[d] him all the time" and that he had difficulty standing and sitting down. He indicated that he could no longer work because of his back. Upon physical examination, there was 30 degrees of flexion, 20 degrees of hyperextension, 20 degrees of right lateral bending, 20 degrees of left lateral bending, and 30 degrees of rotation. Heel and toe walking was normal. There was a palpable muscle spasm in the left lower back. The Lasegue test was positive at 70 degrees. Rocking to flex the lower extremities in the abdomen produced pain in the lower back. An X-ray of the lumbar spine was unremarkable. The diagnosis included low back syndrome. January 2008 Travel Board Hearing The veteran stated that during service he broke his left tibia in a motorcycle accident, and that as a result of the surgery his knee points in a different direction than his foot. He testified that his back pain is caused by having to constantly twist his left foot to keep it from banging into the opposite leg while walking. The veteran stated that he complained of back pain several times during service. At the time, he attributed the back pain to playing basketball. He testified that he had experienced back problems since service. The veteran acknowledged that he did not have a current diagnosis of a back condition and was not currently receiving any treatment for his back. b. Analysis In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims recognized in 38 C.F.R. § 3.159(c)(4) a three-pronged test for ascertaining whether a VA examination or opinion is warranted to address a claim for service connection. The Court stressed that the criteria for obtaining a VA examination is a low threshold. As there is medical evidence of numerous evaluations for low back pain during service, several in-service diagnoses of low back strain and scoliosis, testimony of back pain over the years since the veteran's separation from active duty and a post-service diagnosis of low back syndrome, the Board finds that a VA examination to determine the nature, etiology or approximate onset date of any low back disability that is currently present is warranted. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79 (2006). The record was held open for 60 days so that the veteran could obtain a medical nexus opinion addressing whether his service-connected residuals of a fracture of the left tibia with knee and ankle involvement caused or aggravated his low back disability. The record contains no such opinion. However, given the medical evidence of record and the veteran's contentions on appeal, to include his assertion that his low back disability is linked to his service- connected residuals of a fracture of the left tibia, to include a gait disturbance, the Board finds that an opinion concerning this contended causal relationship is also necessary. 38 C.F.R. § 3.310; 71 Fed. Reg. 52744 (2006); see also Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO must send the veteran a VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) specific to the claim for service connection for a low back disability, to include as secondary to service-connected residuals of a fracture of the left tibia with knee and ankle involvement. Specifically, the letter should: (a) inform the appellant about the information and evidence not of record that is necessary to substantiate the claim for service connection on direct and secondary bases; (b) inform the appellant about the information and evidence that VA will seek to provide; (c) inform the appellant about the information and evidence the appellant is expected to provide; and (d) request that the appellant provide any evidence in the appellant's possession that pertains to the claim. The AMC/RO should also provide the veteran with VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish ratings and effective dates for the benefit sought as outlined by the Court of Appeals for Veterans Claims in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006). 2. The AMC/RO must also notify the veteran and his representative of 38 C.F.R. § 3.310 and an amendment to that regulation, effective October 10, 2006, for the purpose of implementing the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice- connected disorder by service-connected disability. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen by adding language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. 3. Provide the veteran with a VA orthopedic spine examination to determine the nature and approximate onset date and/or etiology of any low back disability that is currently present. The claims file and a copy of this remand must be provided to the examiner for study and it should state in the report of any examination that they have been reviewed by the examiner. Following a review of the relevant evidence in the claims file and a copy of this remand, obtaining a history from the veteran, the clinical examination and any tests that are deemed necessary, the examiner is requested to answer the following questions: (a) Is it at least as likely as not (i.e., 50 percent or greater probability) that any low back disability that is currently present, to include scoliosis, began during service or is etiologically related to any incident of active service, to include the February 1984 motorcycle accident? (b) Is it at least as likely as not that the veteran's service-connected residuals of a fracture of the left tibia with knee and ankle involvement, to include any secondary altered gait that may be present, caused or aggravated any low back disability that is currently present? The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship or a finding of aggravation; less likely weighs against the claim. The clinician is also advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. If it is determined that a disability of the low back was aggravated by the residuals of a left tibia fracture, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected low back disability (e.g., slight, moderate) before the onset of aggravation. The examiner is also requested to provide a rationale for any opinion provided. 4. After completion of any other development indicated by the record, the AMC/RO must adjudicate the claim for service connection for a low back disability, to include as secondary to service-connected residuals of a fracture of the left tibia. If any benefit sought remains denied, the AMC/RO should issue an appropriate SOC and provide the veteran and his representative an opportunity to respond. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).