Citation Nr: 1031997 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 04-41 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hip disabilities. 2. Entitlement to service connection for lumbar spine disability. REPRESENTATION Appellant represented by: John F. Ketcherside, Attorney ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from August 1967 to April 1971. This matter was before the Board of Veterans' Appeals (Board) following a Board Remand in May 2007. This matter was originally on appeal from rating decisions dated in October 2001 and February 2004 of the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee. 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. FINDINGS OF FACT 1. In May 15, 2009, the Board issued a decision as to the issues of entitlement to service connection for right and left hip disabilities and entitlement to service connection for a lumbar spine disorder. 2. Prior to the May 15, 2009, Board decision, the Veteran filed a valid VA Form 21-22a, "Appointment of Individual as Claimant's Representative," in favor of John F. Ketcherside, Attorney, as the claimant's representative in his appeal at the Board. CONCLUSION OF LAW The May 15, 2009, Board decision addressing the issues of entitlement to service connection for right and left hip disabilities and entitlement to service connection for a lumbar spine disorder is vacated. 38 U.S.C.A. § 7104(a)(West 2002); 38 C.F.R. § 20.904 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a)(West 2002); 38 C.F.R. § 20.904 (2009). In a May 15, 2009, decision, the Board denied the claims of entitlement to service connection for right and left hip disabilities and entitlement to service connection for a lumbar spine disorder. Prior to the Board's decision, however, the Veteran filed a valid VA Form 21-22a, "Appointment of Individual as Claimant's Representative," in favor of John F. Ketcherside, Attorney, as the claimant's representative in his appeal at the Board. The Board notes that the representation was not acknowledged, and, therefore, the Board's decision was mailed to the wrong representative. Because the failure to update representation could deprive a claimant of due process, the Board vacates the decision with respect to the issues of entitlement to service connection for right and left hip disabilities and entitlement to service connection for a lumbar spine disorder. ORDER The May 15, 2009, Board decision addressing the issues of entitlement to service connection for right and left hip disabilities and entitlement to service connection for a lumbar spine disorder is vacated. REMAND The Veteran seeks service connection for bilateral hip and lumbar spine disabilities. On the Veteran's application for compensation received in March 1999, the Veteran stated that he injured his left hip and left knee in December 1967 when he fell approximately 25 feet from the top of a climbing rope during basic training. In November 2000, the Veteran stated that as a result of an injury in basic training in October 1967, he had osteoarthritis in his left hip and left lower back. In March 2001, the RO received a statement in support of claim from the Veteran in which he contends that as a result of a fall approximately 25 feet from the top of a climbing rope in basic training, his left hip was injured and that osteoarthritis developed in the left hip and back. In May 2004, the Veteran testified that during physical training he was climbing ropes and he fell maybe fifteen feet and landed on his back. The Veteran testified that it knocked the breath out of him for a minute and a couple of the guys picked him up. He was asked if he was okay and he said, "Yeah, I'm fine." The Veteran stated that although he was in serious pain, his first thought was, "I'm probably okay, but I just need to move on." The Veteran stated that he started running, and it caught about three of four times, but he managed to get through the next two weeks. The Veteran testified that he got out of basic in November 1967 and went home for Christmas. The Veteran testified that sometime in December 1967, he went to his family doctor because "this thing" locked up on him at home and he couldn't move. The Veteran also testified that he did not remember having an examination at discharge and stated that he certainly would remember that. In June 2004, the RO received a statement from M.R.S. who stated that during basic training in September 1967, he witnessed the Veteran fall during a rope climb exercise and saw him limp back in line. M.R.S. stated that for the rest of basic training, the Veteran walked with a decided slouch as he could not straighten up, and eight months later when they ran into each other in the Philippines, the Veteran still had the slouch and had gained a limp as if he could not stand or walk straight up. The Veteran's service treatment records indicate that the Veteran presented in January 1970 with complaints of recurrent lumbar back pain for three years. The Veteran reported that the pain most severe in the morning and that his back "catches." Some muscle spasms were noted. The provider noted no previous H-10 or HR [hospital record] entries. Physical examination showed full range of motion and minimal muscle spasm. A bed board and back exercises were prescribed. The Veteran presented in September 1970 with complaints of recurrent pain in lower back. The Veteran reported that his back "catches" when he bent over. The Veteran demonstrated only partial ability to stoop over upon examination. The medical provider noted the previous entry in January 1970 on H-10 of similar complaint. A bed board, exercises, and Robaxin were prescribed. The Veteran presented in November 1970 with back pain. It was noted that the Veteran had had quite a long history of complaints and noted that the Veteran was obviously in pain. The Veteran was referred to orthopedic emergency and prescribed Darvon and bed rest. The November 1970 Orthopedic clinic record noted that the reason for request was that the Veteran had been troubled with occasional low back pain for the past two years presented with an acute low back pain that started after he got out of bed that morning and had lumbar scoliosis secondary to muscle spasms and was having difficulty walking. The examiner stated that he did not feel that this was an emergency but noted that the Veteran had right sided low back pain and some muscle spasm of moderate amount in the erector spinal groups causing some degree of scoliosis and some pain on straight leg raise. The examiner stated that neurologically, the Veteran was within normal limits with no deficits noted. The examiner stated that he would have appreciated x-rays from elsewhere if he had any but that lumbar and L5-S1 projections showed only lumbar scoliosis with no other abnormalities noted. The examiner stated that he felt the Veteran should continue to be treated conservatively and should return to clinic for follow up in 10 days. Impression was lumbar back strain with erector spinal muscle spasm. In support of his claim, the Veteran submitted a January 2004 letter from Dr. Russell which states that the Veteran had been a patient of his in the past, that the Veteran had bilateral hip replacements and back problems, and that he had been asked by the VA representatives whether an injury in basic training could have contributed to or been responsible for the Veteran's current musculoskeletal problems. Dr. Russell opined that it was as likely as not likely that the previous injury during basic training was responsible for the muscular conditions which the Veteran developed related to his back and total hip replacements. Post-service medical records indicate that prior to hip replacement, the Veteran was diagnosed with severe osteoarthritis of both hips with complete erosion of the articular cartilage and erosion into the supra-ace tabular area of the left hip and essentially complete loss of joint space on the right. In May 2007, the Board remanded the case for additional development to include providing the Veteran with a VA examination to determine the etiology of his bilateral hip and low back disorders. The Veteran underwent VA examination in September 2008. The September 2008 VA examiner, Dr. Lake diagnosed the Veteran with lumbar spine spondylosis and status post right and left hip replacements with limited motion. Dr. Lake, after review of the Veteran's claims file, interview with the Veteran, and examination of the Veteran, opined that it would be mere medical speculation to say that the Veteran's lumbar spine condition was the result of an injury during his active duty. Dr. Lake explained that the Veteran has generalized lumbar stenosis and spondylosis which is a chronic degenerative condition and not from acute trauma. Dr. Lake also stated that the Veteran has degenerative arthritis of his hips noting that the Veteran could have a genetic component to his degenerative disease. Dr. Lake noted that there were too many factors that could lead to the diagnosis and thus he would need to speculate. Dr. Lake stated that he believed that the Veteran's hip conditions were less likely than not a result of his lower back condition and were not worsened by this condition. He explained that degenerative arthritis of the hips is a common disorder among men the Veteran's age and that the fact that his condition is bilateral makes it less likely to be an isolated injury. Dr. Lake also noted that to state whether the Veteran's hip and back disorders were manifested within one year of his service discharge would also be speculation. Dr. Lake stated that the Veteran's right and left hip disorders were less likely than not chronically worsened by the Veteran's low back disorder and less likely than not a result of his service period. The Veteran's attorney argues that the condition which began in the service and continues is scoliosis and that the Veteran's degenerative disease of the hips and spine, which required hip replacements, is secondary to the scoliosis. The Veteran's attorney points out that Dr. Lake never mentioned scoliosis which calls into question his review of the claims file. Thus, although the Veteran underwent a VA examination in September 2008, pertinent issues were not addressed; thus, the Board finds that it has no alternative but to remand this issue for an additional medical opinion. The Veteran's attorney also noted that scoliosis can be congenital, neuromuscular, idiopathic, and traumatic. The provisions of 38 C.F.R. § 4.9, 4.57 make a distinction between congenital and acquired defects. Service connection for congenital or developmental defect is precluded by 38 C.F.R. § 3.303(c), 4.9. VA's Office of the General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary disease, for which service connection may be granted, if initially manifested in or aggravated by service. O.G.C. Prec. Op. 82-90, 55 Fed Reg. 45711 (1990); O.G.C. Prec. Op. 67-90, 55 Fed. Reg. 43253 (1990). Defects were defined as "structural or inherent abnormalities or conditions that are more or less stationary in nature." O.G.C. Prec. Op. 82-90, 55 Fed. Reg. 45711 (1990). However, congenital or development defects may be service-connected where a superimposed disability occurs during, or as a result of, active service. VAOPGCPREC 82-90. While diseases that are congenital, developmental, or familial are ordinarily found to have pre-existed a claimant's military service, there may be instances in which guidance is necessary regarding the actual time of inception. VAOPGCPREC 82-90. The VA's Office of General Counsel has held that if a congenital, developmental, or familial disease is determined to have preexisted service, the issue of whether such disease was aggravated by service is subject to the same stringent legal standards applicable in cases involving acquired disabilities. Id. Such standards require clear and unmistakable evidence to rebut any presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306 (2009). Thus, if it is determined that the Veteran's scoliosis preexisted service, an opinion is needed as to the likelihood that any current low back or hip disorder is due, either all or in part, to an aggravation of scoliosis. Such opinion should specifically address whether any increase in the severity of any preexisting disorder was due to the natural progress of the disease. Additionally, an opinion is needed which addresses any causal relationship between a current low back disorder and any additional in-service back problems, regardless of whether the Veteran's scoliosis preexisted service in light of his lay statements regarding continuity of back problems post-service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4) (2009). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for his back or hip conditions that is not evidenced by the current record. If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. These records should then be obtained and associated with the claims folder. The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue. 2. The Veteran should be afforded the appropriate VA examination by an Orthopedist to determine the etiology of all current lumbar spine and bilateral hip disorders. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should identify any current hip and lumbar spine conditions, including scoliosis, and should state whether any such conditions are acquired or congenital. i. If a congenital condition exists, the examiner should state whether it is a disease or defect. VA's Office of General Counsel has distinguished between hereditary diseases and defects, emphasizing that the former is capable of improvement or deterioration while the latter is static. VAOPGCPREC 82-90 (O.G.C. Prec. 82-90). A "defect" is defined as an imperfection or structural abnormality, while a "disease" is any interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs. Id. If a congenital defect is present, the examiner should render a medical opinion as to whether the evidence shows that it was at least as likely as not subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. If a congenital disease is present, the examiner should render an opinion to a degree of great certainty whether the congenital disease preexisted the Veteran's military service; and if so whether there is clear and unmistakable evidence that the disease did not increase in severity beyond the natural progression of the disease during service or whether there is clear and unmistakable evidence that any increase in disability was "due to the natural progression" of the disease? The examiner should identify such evidence with specificity. ii. With respect to any current acquired hip or spine disorders identified, the examiner is asked to render a medical opinion as to whether it is at least as likely as not that any current disorder was related to the symptoms documented during the Veteran's active duty service or otherwise related to the Veteran's active duty service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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. 2009). _________________________________________________ MILO H. HAWLEY 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) (2009).