Citation Nr: 0936736 Decision Date: 09/28/09 Archive Date: 10/09/09 DOCKET NO. 02-74 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to an initial compensable disability rating for bilateral pes planus. REPRESENTATION Veteran represented by: Brian M. Ramsey, Attorney-at- Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to March 1970. The matter of entitlement to service connection for lumbar spine disability came to the Board of Veterans' Appeals (Board) from a January 2001 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in March 2005 and May 2006 for further development. The Veteran testified at a Board hearing in September 2004 with regard to his claim of service connection for a lumbar spine disability. The matter of entitlement to a compensable rating for bilateral pes planus comes to the Board from a December 2006 rating decision. A notice of disagreement was received in March 2007 with regard to the disability rating assigned, a statement of the case was issued in July 2007, and a substantive appeal was received in August 2007. In September 2007, the Veteran requested a Board hearing with regard to the issues on appeal; however, he cancelled such request in April 2009. The issue of entitlement to a compensable rating for bilateral pes planus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any further action is required on his part. FINDING OF FACT A lumbar spine disability was incurred in service. CONCLUSION OF LAW A lumbar spine disability was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION With regard to the issue of entitlement to service connection for lumbar spine disability, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency as the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The agency of original jurisdiction will take such actions in the course of implementing this grant of service connection, and the Veteran may always file a timely notice of disagreement if he wishes to appeal from those downstream determinations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Criteria & Analysis The issue before the Board involves a claim of entitlement to service connection for lumbar spine disability. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111. Determination of the existence of a pre-existing condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion, see Miller v. West, 11 Vet. App. 345, 348 (1998), or a later medical opinion based upon statements made by the veteran about the pre-service history of his/her condition. Harris v. West, 203 F.3d. 1347 (Fed. Cir. 2000). An examination performed for enlistment purposes in July 1969, reflects that the Veteran's 'spine, other musculoskeletal' was clinically evaluated as normal. The examiner only noted pes planus under the 'Summary of defects and diagnoses' section of the examination report. On a Report of Medical History completed by the Veteran in July 1969 for enlistment purposes, he checked the 'No' box with regard to 'recurrent back pain.' A February 1970 radiographic report reflects as follows: There appears to be a mild scoliosis involving the dorsal spine directed left. Multiple views of the lumbosacral spine demonstrate a mild tilting to the left which is thought to be positional. There is no evidence of acute fracture and the disc spacings are well maintained. There is a bilateral spondylolysis at L5 unassociated with spondylolisthesis. A March 1970 'Medical Board Summary' reflects chief complaints of chronic back pain and chronic foot pain for many years duration. With regard to 'History of Present Illness' the record reflects as follows: The [Veteran] has a long history of having repeated attacks of low back pain, both in civilian life and in his short military career. He states that he has been to see the Army physician on numerous occasions because of chronic low back pain and inability to perform the necessary walking and marching and calisthenics that is required of him. On physical examination, there was full range of motion of the back, and minimal muscle spasm in the lumbar region. He complained rather bitterly of pain on full flexion of the lumbar region. There was no evidence of sciatica and all deep tendon reflexes were within normal limits. With regard to laboratory data, it was explained that significant laboratory data was limited to the x-ray studies. On x-ray examination, multiple views of the lumbosacral spine demonstrated mild tilting to the left, thought to be positional. There was no evidence of an acute fracture and the disc spaces were well maintained. There was a bilateral spondylolysis at L5, associated with spondylolisthesis. Sacroiliac and hip joint spacings were well maintained. It was noted that the Veteran was functioning at a borderline level. He complained of chronic low back pain and was having repeated problems with inability to perform his duties. The author of the summary stated that the condition was a congenital condition that existed prior to entering the service. They are conditions which are not correctable and they are conditions which will continue to give him problems. Thus, separation was recommended. The diagnosis rendered was spondylolysis with more than mild symptoms, resulting in repeated outpatient visits and significant assignment limitations, and that the disability existed prior to service (EPTS) and was not service aggravated. (The Board notes that the February 1970 radiographic report reflects "bilateral spondylolysis at L5 unassociated with spondylolisthesis" but the March 1970 Medical Board report reflects "bilateral spondylolysis at L5, associated with spondylolisthesis" (emphasis added).) In March 1970, the Veteran affixed his signature to a 'Disposition Form' which stated as follows: 1. I request discharge for a physical disability. I have been informed that, based upon the findings and recommendations of a medical board, I am considered to be unfit for retention in the military service by reason of physical disability which has been found to have existed prior to my induction and which is neither incident to nor aggravated by military service. -- 3. If this application is approved, I understand that I will be separated by reason of physical disability EPTS and will receive a discharge of the type commensurate with the character of my service, as determined by the officer designated to affect my separation. In July 1972, the Veteran filed a claim of service connection for "back injury" which he stated occurred in October 1969 at Fort Campbell, Kentucky during an obstacle course when he flipped over and fell. In support of his claim, he submitted a December 1971 outpatient record from Riverside Hospital. The record reflects that the Veteran fell against a rail injuring the left rib area. He then fixed a flat tire and was having more pain in the left rib area. The assessment was contusion left rib cage, and an x-ray examination was negative for fracture. In September 1972, the Veteran underwent a VA examination. He reported to the examiner that he strained his lower dorsal back region carrying a man in training during January 1970. He reported that he had outpatient treatment and was given a back support. The examiner diagnosed residuals strain lower dorsal back region by history. In February 1985, the Veteran sought treatment for back pain, and reported back pain for a 15 year period. An April 1985 VA outpatient treatment record reflects the Veteran's report that his original injury was when he slid down a pole as a lineman in service. The assessment was back pain. In March 1995, the Veteran sought treatment with Van B. Boggus, M.D. He was evaluated following a December 1994 back injury. Dr. Boggus stated that films of his lumbar spine showed spondylolysis at L5, age indeterminate with sclerosis of his sacroiliac joints. Dr. Boggus stated that he has Grade I isthmic spondylolisthesis L5 S1 with clear spondylolysis defects at L5. There was no evidence of severe spondylosis of the L4-5 or L5-S1 disk space. The sacroiliac joints show significant changes right greater than left. This was characterized by sclerotic bone formation extending well beyond the margins of the SI joint into the posterior ileum. The impression was isthmic spondylolisthesis L5 S1 with mechanical lumbosacral pain; sacroiliac sclerosis rule out seronegative spondyloarthropathy; and, minimally symptomatic bilateral hip arthritis. In September 2004, the Veteran testified at a Board hearing. The Veteran testified that during service he had been conducting infantry training, but his orders were changed to field wireman course. He was assigned to Fort Jackson for training for communications. He reported that he had to climb telephone poles to lay wires and would wear spikes. He reported that on one occasion, he "came down off the pole" and injured his back. He stated that he sought treatment at the infirmary and was prescribed medication, which may have been Motrin. After such injury, he stated that his MOS was changed to laboratory technician. In February 2007, Craig N. Bash, M.D., submitted a medical opinion after reviewing service medical records, post-service medical records, imaging reports, the Veteran's lay statements, other medical opinions, and medical literature. Dr. Bash opined that the Veteran's current lumbar spine problems are due to his experiences that he had during military service and that his bilateral foot problems originated in service and therefore were not likely congenital in origin. Dr. Bash determined that the 'Facts' were that the Veteran entered service fit for duty; fell straight down a pole in the Army in 1969; and, had several visits to medical professionals during service as reported in his Medical Board report of March 1970. Dr. Bash stated that no medical records prior to service are in his file and therefore the comments about back pain in civilian life prior to service are of uncertain validity and are neither valid nor significant because the Veteran entered service with a normal physical examination. Dr. Bash acknowledged the objective findings and diagnosis contained in the Medical Board Report. Dr. Bash explained that spondylolysis is a fracture of the Pars interarticularis and the spondylolisthesis is the spines response to the fracture, manifest as slippage (Grades 1-4). Dr. Bash explained that the Veteran's muscle spasms and diagnosis of spondylolysis documents that his condition worsened during service. Dr. Bash stated that the 1995 diagnosis simply re-documents his longstanding spondylolisthesis which was first noted during service time. Dr. Bash acknowledged post-service injuries, but opined that these were exacerbations of his service induced spine fractures (spondylolysis). In February 2007, the Veteran underwent a VA examination and the examiner noted review of the claims folder. The examiner stated that the claims folder documents spondylosis and spondylolisthesis discovered in service in 1970. The examiner noted that the Veteran had an injury to the back in 1969 and 1970 falling from a pole. He was found to have an underlying pre-existing spondylosis with spondylolisthesis. Since that time, he has had persistent back problems. The examiner conducted a physical examination and diagnosed residual injury lumbar spine with spondylolisthesis. An x- ray examination showed minimal degenerative of the lower lumbar spine with grade 1 spondylolisthesis at L5-S1. The examiner opined that the Veteran has a pre-existing spondylolisthesis of his lumbar spine documented in the service in 1969 and 1970. Any aggravation beyond normal course or any relationship to his original injury back that far in 1969 and 1970 is speculative. In April 2007, Dr. Bash submitted another opinion. Dr. Bash reiterated that the Veteran was admitted into service fit for duty, therefore it is likely that his fall in service produced a bilateral spondylolysis of his pars with associated pain and muscles spasms with lead to his spondylolysis/spondylolisthesis with requisite back pain/spasms as it is well known that an axial load injury can cause the Veteran's type of problems and falling from a pole is a classic axial load scenario. In May 2009, another opinion was received from Dr. Bash in which he responded to the February 2007 VA opinion. Dr. Bash stated that he disagreed with the opinion because the VA examiner did not address the Veteran's lay statements that his back had worsened during service; the VA examiner did not address the Veteran's normal entrance examination; the VA examiner did not discuss the concept of axial loading and the creation of pars defects; the VA examiner did not discuss the February 1970 x-ray report; and, the VA examiner did not provide any literature to support his opinions. Dr. Bash stated that the Veteran entered service fit for duty, had a fall wherein he injured his back, and after reviewing the claims folder saw nothing in the record to change his position. In June 2009, the Veteran's treating physician Jonathan E. Rohrs, M.D. submitted correspondence stating that the Veteran had an injury during service in 1970, and that he agrees with Dr. Bash that the Veteran should be assigned 75 percent "more likely than not" for his acquired back injury. Dr. Rohrs referenced Dr. Bash's May 2009 opinion. The Veteran is presumed under the law to have been in sound condition when he entered active duty in July 1969. The Veteran's enlistment examination did not note any disability related to the back. Thus, the Veteran's back disability disorder was not "noted" on entrance. Consequently, the Veteran is presumed to have entered service in sound condition as it pertains to his back. 38 U.S.C.A. § 1111. Dr. Bash opined that the Veteran has a fracture of the Pars interarticularis and spondylolisthesis due to inservice trauma. Likewise, in June 2009, Dr. Rohrs essentially characterized the Veteran's current disability as one which was incurred in service. Therefore, the Board is unable to find that the competent evidence of record rises to the level of clear and unmistakable evidence regarding whether the Veteran's lumbar spine disability manifested in service preexisted service. Finally, in light of the Veteran's inservice complaints of low back pain, the inservice diagnosis of a lumbar spine disability, and the opinions of the private physicians that the Veteran's current lumbar spine disability was incurred in service, service connection for lumbar spine disability is warranted. ORDER Entitlement to service connection for lumbar spine disability is warranted. REMAND In a May 2006 decision, the Board found that the evidence does not clearly and unmistakably show that the Veteran's bilateral pes planus disability preexisted service and was not aggravated by service. Thus, the Board concluded that bilateral pes planus was incurred in the Veteran's active duty service. In a December 2006 rating decision, the RO implemented the Board's decision and assigned a noncompensable evaluation. The Veteran perfected an appeal with regard to the disability rating assigned. In assigning the noncompensable evaluation, the RO determined that prior to service, the Veteran's disability was considered 10 percent disabling based on evidence of pronation and tenderness over plantar surface, and that following service, his disability was considered 10 percent disabling because there was no evidence that his pre-existing congenital pes planus was shown to be permanently aggravated beyond the normal progression of the disability by service. The RO deducted the preservice percentage from the post- service evaluation, thus resulting in a noncompensable evaluation. Such rating assignment by the RO, however, is in error as the Board concluded that the Veteran's bilateral pes planus did not preexist service, and that his pes planus was incurred in service. Thus, the RO should assign a disability rating based on the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service- connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Thus, the RO should readjudicate the disability rating assigned to bilateral pes planus in consideration of the above. The Board has also determined that the private and VA examinations of record do not adequately differentiate between the symptomatology attributable to his service- connected bilateral pes planus, and the symptomatology attributable to any nonservice-connected disability, to include any disability of the ankles or legs. Thus, the Veteran should undergo a new VA examination to assess the nature and severity of his pes planus, and the symptomatology attributable to his service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (remanding Board's decision where medical evidence did not differentiate between symptomatology attributed to a non-service-connected disability and a service-connected disability); see also 61 Fed. Reg. 52695 (Oct. 8, 1996) (VA responding to commenters by noting that, when it is not possible to separate the effects of conditions, VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the claimant's favor, clearly dictate that such signs and symptoms be attributed to the service-connected condition). The RO should also ensure that the Veteran has received notice pursuant to the VCAA with regard to his claim for a higher initial rating. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). VA has a duty to notify the Veteran of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Proper notice, which notifies him of the evidence and information necessary to support his claim must be issued to the Veteran. Along with ensuring proper VCAA notice pertaining to his claim, VA is also instructed to provide proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). VA should inform the Veteran that an effective date will be assigned if an increased disability rating is assigned, and such notice should also include an explanation as to the type of evidence that is needed to establish an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Accordingly, this case is REMANDED for the following actions: 1. Ensure compliance with all notice and assistance requirements set forth in the VCAA and its implementing regulations, to include advising the Veteran of the evidence necessary to substantiate his claim for a higher initial rating, as well as what evidence he is to provide and what evidence VA will attempt to obtain in accordance with Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice should include an explanation as to the information or evidence needed to establish an effective date, as outlined by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected bilateral pes planus. It is imperative that the claims file be made available to and reviewed by the examiner in connection with the examination. Any necessary special studies should be performed and all pertinent clinical findings should be reported. The examiner should provide an opinion as to whether there is any marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, swelling on use, characteristic callosities, any tenderness of plantar surfaces of the feet, marked inward displacement, severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances. The examiner should attempt to distinguish the symptomatology attributable to the pes planus, and symptomatology attributable to nonservice-connected disabilities. The examiner should also provide an opinion concerning the impact of the service-connected pes planus on the Veteran's ability to work, and provide supporting rationale for this opinion. 3. Readjudicate the Veteran's claim for a higher initial rating in consideration of 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (see text above). Then issue a supplemental statement of the case to the Veteran and his representative and provide him an opportunity to respond before this case is returned to the Board. The Veteran and his representative have the right to submit additional evidence and argument on the matter 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. 2008). ____________________________________________ Leonard J. Vecchiollo Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs