Citation Nr: 0814807 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 06-13 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for lumbosacral anatomy, spondylosis at L5-S1, rudimentary disc space at S1-2 (claimed as low back pain). 2. Service connection for bilateral meralgia paresthetica (claimed as pain and numbness in both thighs). ATTORNEY FOR THE BOARD Joseph R. Keselyak, Associate Counsel INTRODUCTION The veteran served on active duty from August 1980 to September 2004. This matter comes to the Board of Veterans' Appeals (Board) from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. FINDINGS OF FACT 1. The veteran incurred lumbosacral anatomy, spondylosis at L5-S1, rudimentary disc space at S1-2 in service. 2. The veteran incurred bilateral meralgia paresthetica in service. CONCLUSIONS OF LAW 1. Affording the veteran the benefit of the doubt, lumbosacral anatomy, spondylosis at L5-S1, rudimentary disc space at S1-2was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2007). 2. Affording the veteran the benefit of the doubt, bilateral meralgia paresthetica was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2007). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111. To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Congenital or developmental defects are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Low Back The veteran's entrance examination dated in July 1980 is negative with respect to abnormalities of the spine. The first notation of low back pain appears in a September 1991 service medical record, at which time the veteran complained of low back pain and popping while doing physical training. Lumbosacral spine, transitional vertebral body (lumbarization of sacrum, on left side only), joint space narrowing at L5-S, was diagnosed. The veteran's service medical records contain numerous complaints of low back pain following this complaint. The veteran's retirement examination dated in May 2004, did not note any abnormalities of the spine, but the veteran did note recurrent back pain on his report of medical history at this time. A May 2004 medical record-supplemental medical data form dated a few days after the veteran's retirement examination notes low back pain. The doctor who authored this document stated therein that there was no particular trauma, but that the veteran had an intermittent strain for about 10 years. Examination showed no focal tenderness or deformity and there was full range of motion. Of record is an outpatient record dated in June 2005 from Luke Air Force Base. At the time X-ray revealed positional curvature versus scoliosis convex towards the left, no acute fracture and decreased disc space at L5-S1 and right sided sacralization at S1. The treating physician noted that with respect to the decreased disc space at L5-S1 that it "might be congenital or acquired." In October 2005, the veteran was afforded a VA examination with respect to his low back. At the time the veteran reported low back pain for approximately the past 12 years with no specific history of injury. Examination resulted in a diagnosis of transitional lumbosacral anatomy with rudimentary disc space at S1-S2 and mild spondylosis at L5-S1 by magnetic resonance imaging. The examiner stated that it was not absolute that these findings were congenital, but that it was more likely than not that they were. The examiner lastly stated that the veteran's low back disability was chronic. Entitlement to service connection for lumbosacral anatomy, spondylosis at L5-S1, rudimentary disc space at S1-2 is granted. The veteran's entrance examination is silent with respect to findings of abnormality of the spine and the presumption of soundness attaches. The service medical records show that he was first diagnosed as having a low back disability in service in September 1991. The evidence following service shows that this disability has persisted and is chronic. The first step to rebut the presumption of soundness requires clear and unmistakable evidence that the condition existed prior to service. In this case, the pertinent medical evidence only states that the veteran's low back disability "might" or "more likely than not" be congenital in nature. The VA examiner specifically stated that it was not absolute that these findings were congenital. This is not clear and unmistakable, which is a higher standard of proof than beyond a mere preponderance of the evidence. The first part of the burden has not been met here and the presumption of soundness has not been rebutted. The Board need not address aggravation. Affording the veteran the benefit of the doubt, service connection for lumbosacral anatomy, spondylosis at L5-S1, rudimentary disc space at S1-2 is granted. Bilateral Meralgia Paresthetica The veteran first complained of pain and numbness in his thighs in August 2004, immediately before his retirement from service, as reflected in a treatment record from Luke Air Force Base dated at this time. This treatment record contains a diagnosis of bilateral thigh pain/parasthesias, rule out femoral nerve entrapment versus other peripheral neuropathy. Included in the record is the report of a March 2005 neurological examination which resulted in a diagnosis of bilateral meralgia parasthesia, representative of an isolated pressure palsy. The examiner stated that he suspected that these findings were related to isolated compression neuropathies from wearing a pistol belt, etc. while in the military. At his October 2005 VA examination, the veteran reported constant numbness from his knees up to the inguinal area bilaterally in the anterior area of the thighs for about 12 years duration. The examiner diagnosed bilateral meralgia parasthetica that probably represented an isolated pressure palsy. In his April 2006 Substantive Appeal, the veteran reiterated that had been experiencing the leg numbness since "before 2004." Entitlement to service connection for bilateral meralgia parasthetica is granted. The veteran has competently reported symptomatology of numbness and pain from his knees up to his thighs, which began in service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Bilateral meralgia parasthetica was first diagnosed in service and diagnosis thereof continues to present day. The VA examination of October 2005 relates this disorder to the veteran's wearing of a pistol belt in service. Accordingly, the evidence clearly indicates that the veteran incurred bilateral meralgia parasthetica, a neurological condition, in service and the claim is thus granted. Considering the favorable outcome detailed below, VA's fulfillment of its duties under the Veterans Claims Assistance Act, 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, need not be addressed at this time. ORDER Service connection for lumbosacral anatomy, spondylosis at L5-S1, rudimentary disc space at S1-2 (claimed as low back pain) is granted. Service connection for bilateral meralgia paresthetica (claimed as pain and numbness in both thighs) is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs