Citation Nr: 0943226 Decision Date: 11/13/09 Archive Date: 11/25/09 DOCKET NO. 06-26 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for transitional lumbosacral vertebra fused with sacrum; compression fracture, L3, L4, and L5. 2. Entitlement to service connection for transitional lumbosacral vertebra fused with sacrum; compression fracture, L3, L4, and L5. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from August 1964 to February 1965 and on active duty from June 1968 to October 1968. This matter arises before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2009, the Veteran testified at a hearing before the undersigned. The Board notes that in October 2009 the Veteran requested a hearing before the Board in Washington, DC. However, as good cause has not been shown for holding a second Board hearing, the Board must deny this request. FINDINGS OF FACT 1. The evidence received since the August 1986 Board decision is new and when considered with previous evidence of record relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for transitional lumbosacral vertebra fused with sacrum; compression fracture, L3, L4, and L5. 2. The record contains clear and unmistakable evidence demonstrating that the Veteran's transitional lumbosacral vertebra fused with sacrum; compression fracture, L3, L4, and L5 existed prior to service and there is no clear and unmistakable evidence that the transitional lumbosacral vertebra fused with sacrum; compression fracture, L3, L4, and L5 was not aggravated by his military service. CONCLUSIONS OF LAW 1. The Veteran has submitted new and material evidence sufficient to reopen the claim of entitlement to service connection for transitional lumbosacral vertebra fused with sacrum; compression fracture, L3, L4, and L5. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). 2. A transitional lumbosacral vertebra fused with sacrum; compression fracture, L3, L4, and L5 was aggravated by military service. 38 U.S.C.A. §§ 1110, 1111, 1132, 1153, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The Board notes that the application to reopen the claim of entitlement to service connection for transitional lumbosacral vertebra fused with sacrum; compression fracture, L3, L4, and L5, is being reopened for the reasons explained below. The Board also notes that it is granting the underlying service connection claim for transitional lumbosacral vertebra fused with sacrum; compression fracture, L3, L4, and L5. Given the fully favorable decision contained herein, the Board finds that discussion of the VCAA notice provided to the Veteran is unnecessary, since any deficiency in the timing or content of such notice would constitute harmless error. To whatever extent the decision of the United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as a disability rating and effective date, the Board finds that the RO will address any applicable downstream issues when effectuating the award and therefore any failure to provide this notice at this junction cannot prejudice the claimant because he will be free to appeal any unfavorable finding by the RO regarding the disability rating and effective date. The Claim to Reopen The Veteran and his representative contend that the claimant's transitional lumbosacral vertebra fused with sacrum; compression fracture, L3, L4, and L5 (lumbosacral spine disorder), was caused by a motor vehicle accident (MVA) prior to his active duty service and that this back condition was aggravated by active duty service and should therefore be service-connected. The law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). The Board is required to give consideration to all of the evidence received since the August 1986 Board decision in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, since the August 1986 Board decision, VA received an October 2006 letter from a private radiologist, C.N.B, M.D., in which he opined that the Veteran's new spondylolisthesis of 20% in September 1968 while in service documents that he had aggravation and worsening of his 1965 lumbar spine fractures while on active duty. The doctor further opined that the Veteran's experience of carrying heavy packs in service in 1968 likely caused his new spine problem. The Board finds that this opinion, the credibility of which must be presumed, Kutscherousky, supra, provides for the first time competent evidence that the claimant's pre- existing lumbosacral back disability was aggravated by his active duty service. See 38 C.F.R. § 3.303. Thus, the Board finds that the additional evidence is both new and material as defined by regulation. 38 C.F.R. § 3.156(a). The claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Merits of the Claim The Veteran contends that his lumbosacral spine disability preexisted military service and was aggravated by such service. It is also requested that the veteran be afforded the benefit of the doubt. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Arthritis, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 C.F.R. §§ 3.307, 3.309. 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 entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. §§ 1111, 1132; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) [noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"]. It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003); citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, 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. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3- 2003; see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 U.S.C.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). A finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306- 07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). As to whether the Veteran's lumbosacral spine disability pre- existed his June 1968 entry onto active duty, orders show that he was placed on active duty in June 1968 due to a failure to participate satisfactorily in reserve training. The Veteran reported at the time that he had a back condition that was the result of an April 1965 motor vehicle accident (MVA). He provided a letter from the private doctor that treated him following the accident that stated that he suffered a compression fracture of the fifth lumbar vertebra and an oblique fracture of the transverse process of the fourth lumbar vertebra. The doctor subsequently, in March 1968, examined the Veteran and found that he suffered from some persistent deformity and persistent symptoms of low back pain with sciatic radiation of pain and the beginning of Schmorl's node formation in the upper portion of the body of the fifth lumbar vertebra and some osteophyte formation of the lower margin of the posterior aspect of the body of L4 extending into intervertebral foramon. Additionally the Veteran provided a March 1968 letter from a railway company that had turned him down for employment due to his back injury. A May 1967 annual report of medical examination listed the Veteran as normal, but in the accompanying report of medical history, the claimant notes his prior use of a back brace as well as his weak back. Treatment reports, including x-rays from June 1968 when the Veteran was assigned to active duty, indicate that he was suffering from some narrowing at the L4 disc with a 20 percent compression fracture. And finally, the Veteran's entrance examination, dated May 1968, noted an old compression fracture at L5, although it stated that the lumbosacral spine had full strength and range of motion. However, the Board notes that the entrance examination fails to note the Veteran's complaints of recurrent back pain or his extensive history of back problems. Given the above evidence, the Board finds that record contains clear and unmistakable evidence demonstrating that the Veteran's lumbosacral spine disability existed prior to service. 38 U.S.C.A. §§ 1111, 1132; 38 C.F.R. § 3.304(b). Accordingly, the next question for the Board to consider it whether there is clear and unmistakable evidence that the lumbosacral spine disability was not aggravated by his military service. VAOPGCPREC 3-2003. In this regard, the September 1968 medical board report states that the Veteran's injury pre-existed service and was not aggravated by service. Indeed, the Veteran signed a statement that attested to same. On the other hand, during his short period of active service from June 1968 to October 1968, service treatment records document multiple complaints of lower back pain in June and July of 1968. Moreover, the Veteran was discharged in October 1968 following the medical board evaluation due to a compression fracture of the L5 vertebra and presumptive evidence of a possible herniated disc. Additionally, x-ray reports associated with the medical board report revealed an estimate 20 percent retrolisthesis of L5. Also, as noted above, a private doctor opined in October 2006 that the Veteran's diagnosis of new spondylolisthesis of 20% in September 1968 while on active duty documents that he had aggravation and worsening of his 1965 lumbar spine fractures while on active duty. The doctor further opined that the Veteran's experience of carrying heavy packs in service in 1968 likely caused his new spine problem. Furthermore, the record shows that the Veteran still suffers from back problems. In this regard, a private treatment report dated in October 2006 indicate that the Veteran is currently diagnosed with a mild anterior superior endplate compression fracture L5 vertebra and advanced intervertebral disc degeneration at L5-S1 with some suggestion of disc herniation and moderate intervertebral disc degeneration at L4-5 associated with mild posterior marginal spurring. Initially, the Board notes that while the Veteran signed a statement that attested to the fact that his injury pre- existed service and was not aggravated by service, under 38 C.F.R. § 3.304(b) (2009), "[s]igned statements of Veterans relating to the origin, or incurrence of any disease or injury made in service if against his or her own interest is 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." Moreover, the Board finds that above record, which documents repeated complaints and treatment for a lumbosacral disorder before service and in- service, is sufficient to "not establish the fact" that his lumbosacral disorder was not aggravated by service. Therefore, the Board gives this writing no force and effect. Likewise, the Board finds that October 2006 private physician's opinion that the Veteran's lumbosacral spine disorder was aggravated by his military service more competent and credible than the medical evaluation board report because it was based on a more comprehensive record. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (holding that the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Therefore, the Board finds that the preponderance of the competent and credible medical evidence shows that the Veteran had problems with his back while on active duty. The Board also finds that the record does not contain clear and unmistakable evidence that the Veteran's lumbosacral spine disability was not aggravated by his active duty. Given the above, and granting the Veteran the benefit of any doubt in this matter, the Board concludes that there is no clear and unmistakable evidence that the lumbosacral spine disability was not aggravated by his military service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Accordingly, entitlement to service connection for a lumbosacral spine disability is warranted. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.306. ORDER The claim of service connection for transitional lumbosacral vertebra fused with sacrum; compression fracture, L3, L4, and L5, is reopened. Service connection for transitional lumbosacral vertebra fused with sacrum; compression fracture, L3, L4, and L5 is granted. ______________________________________________ Neil T. Werner Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs