Citation Nr: 1302136 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 09-41 548 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for thoracolumbar scoliosis with degenerative disc disease and stenosis at L3 through S1. REPRESENTATION Appellant represented by: James G. Fausone, Attorney at Law ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to May 1976. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an August 2008 rating decision, by the Atlanta, Georgia, Regional Office (RO), which denied the Veteran's attempt to reopen his claim of entitlement to service connection for a low back disorder, diagnosed as thoracolumbar scoliosis with degenerative disc disease and stenosis at L3 through S1. He perfected a timely appeal to that decision. In a March 2011 Board decision, the claim was reopened and remanded to the RO for further evidentiary development. A review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) in November 2011. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. FINDINGS OF FACT 1. The evidence shows that the Veteran's thoracolumbar scoliosis preexisted military service and clearly and unmistakably did not undergo a permanent increase in the underlying severity during military service. 2. The preponderance of the evidence of record is against a finding that the Veteran's currently diagnosed degenerative disc disease and stenosis is related to military service. CONCLUSION OF LAW Thoracolumbar scoliosis with degenerative disc disease and stenosis at L3 through S1 was not incurred in or aggravated by military service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of letters dated in November 2007 and May 2008 from the RO to the Veteran which were issued prior to the RO decision in August 2008. An additional letter was issued in January 2010. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to the claims decided herein has been obtained and associated with the claims file, and that neither he nor his attorney has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of these claims. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notice. The Veteran has been afforded a VA examination on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examination report reflects that the examiner solicited symptoms from the Veteran, examined the Veteran, provided diagnoses consistent with the record, and included opinions necessary to decide the issue addressed herein. Therefore, the examination is adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence under the duty-to-assist requirements. Therefore, no useful purpose would be served in remanding these matters for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. The Veteran entered active duty in 1974; an enlistment examination revealed a finding of scoliosis, left, thoracolumbar spine, asymptomatic NCD. In August 1975, the Veteran was seen with complaints of low back pain; he denied any recent trauma or strain to the affected area. He stated that he woke up that morning with "sharp pains" in the lumbosacral spine region. The impression was strain, mild. The Veteran was next seen on January 5, 1976 with left sided lower back pain, intermittently since 1973 when he twisted his back playing football. The impression was left ES sprain. He was treated with bed rest and the spasm gradually resolved. A treatment note dated January 14, 1976 reflects an impression was muscle spasm. He was subsequently admitted to the hospital for extended bed rest, heat treatment and muscle relaxers. Following an orthopedic examination, he was diagnosed with chronic thoracolumbar sprain and admitted to the hospital for bed rest. A discharge note dated in March 1976 reflects a diagnosis of thoracic dextroscoliosis. In April 1976, the Veteran was admitted to the hospital for evaluation of his back pain for medical board; it was noted that he was hospitalized and treated conservatively on several occasions without success. He continued to complain of pain while performing his duties. The medical board determined that the Veteran did not meet the minimum standards for enlistment or induction and that he was unfit for further service by reason of thoracolumbar scoliosis, which was not incurred in or aggravated by military service. It was determined that the condition existed prior to service. It was recommended that the Veteran be discharged from the Marine Corps. The Veteran's initial claim for service connection for thoracolumbar spine disorder (VA Form 21-526) was received in July 1976. In conjunction with his claim, the Veteran was afforded a VA examination in July 1976. At that time, the Veteran complained of spasms of the paravertebral muscles which began about June 1976 and for which he was hospitalized for a period of 3 months during which time he received mediation for the pain and he slept of a hard mattress. The Veteran reported that he was separated from service with disability confined to the back in May 1976. He stated that he has not worked because he has been refused employment because of his recurring low back symptoms. Following an evaluation of the spine, the Veteran was diagnosed with scoliosis to the left lumbar region, mild. By a rating action in August 1976, the RO denied the Veteran's claim for service connection for thoracolumbar scoliosis, based on a finding that the condition existed prior to service and was not aggravated thereby. By a rating action in April 1991, the RO determined that new and material evidence had not been submitted sufficient to reopen the Veteran's claim for thoracolumbar scoliosis. Received in November 1991 were private treatment reports dated from December 1973 to May 1995. These records show that the Veteran received treatment for back pain. A private x-ray examination of the lumbar spine, conducted in November 1979, was essentially unremarkable except for rotoscoliosis to the right in the thoracic spine and to the left in the upper lumbar spine and a transitional vertebra at the lumbosacral and thoracolumbar level. An April 1993 Board decision determined that new and material evidence had not been submitted to reopen the claim of entitlement to a back disorder, diagnosed as thoracolumbar scoliosis. VA progress notes dated from March 1998 through May 1998 show that the Veteran received ongoing clinical attention and treatment, including physical therapy, for chronic back pain associated with his thoracolumbar scoliosis. On the occasion of a VA examination in June 1998, the Veteran indicated that he was told that he had scoliosis when he entered active duty in May 1974; he stated that he was very active in high school and he went through basic training without any problems. While in Japan, he was lifting some heavy parts when he suffered acute onset of back pain. The Veteran reported some pain and difficulty standing and walking; he was evaluated by physician, placed on total bedrest and was given Valium. He was told that he would be in a wheelchair at age 25. He described his pain as sharp in his lower back and shooting up and down his legs. Following a physical examination, the examiner reported a diagnosis of severe scoliosis with spinal stenosis and degenerative arthritis. Received in July 2001 were VA progress notes dated from May 1994 to July 2001 which show that the Veteran received ongoing clinical attention and treatment, including physical therapy, for chronic back pain associated with his thoracolumbar scoliosis. An MRI of the lumbar spine, performed in July 2001, revealed findings of degenerative disc disease at multiple levels; and relative canal and neuroforaminal stenosis at L3-4 through L5-S1. In a statement in support of claim (VA Form 21-4138), received in October 2003, the Veteran sought to reopen his claim for service connection for a back disorder. Submitted in support of the claim were VA progress notes dated from August 2002 through February 2004, which show that the Veteran received ongoing clinical attention and treatment for chronic low back pain associated with his scoliosis and degenerative arthritis of the lumbar spine. By a rating action in April 2004, the RO denied the Veteran's attempt to reopen the claim for service connection for a back disorder. It was determined that new and material evidence had not been submitted to reopen the claim for service connection for thoracolumbar scoliosis with degenerative disc disease and stenosis at L3 through S1. In a statement in support of claim (VA Form 21-4138), received in August 2007, the Veteran sought to reopen his claim for service connection for a back disorder. Submitted in support of the claim were duplicate copies of STRs, social security administration decision, dated in September 2006. And VA progress notes dated form June 2007 through February 2008. Received in July 2008 were treatment records from Grady Memorial Hospital, dated in July 2003, which show that the Veteran received treatment for several disabilities, including chronic back pain. Received in August 2008 were VA progress notes dated from March 2008 through August 2008 which show that the Veteran received ongoing treatment for back pain. Of record is a medical statement from Dr. Paula K. Nau, dated in December 2009, indicating that she had reviewed all of the Veteran's records. She noted that the Veteran met the physical criteria to serve in the Armed Forces in 1974; he entered with a known scoliosis, documented to be at five degrees in lumbar area T10-L5. She stated that mild scoliosis is considered anything less than 20 degrees. Dr. Nau observed that the Veteran appeared to have tolerated boot camp and the first year and a half of service as a Marine without back problems. Of note, he was able to participate in high school athletics, including football, prior to enlisting without exacerbation of his congenital back condition. Dr. Nau noted that the Veteran suffered an acute back injury in 1976 after approximately nineteen months of service. During service, he performed repetitive work involving heavy lifting; he then suffered severe muscle spasms and back pain, and subsequently was discharged. Dr. Nau noted that the Veteran underwent an MRI in 1998, which revealed degenerative disc disease from L3 to S1 with moderate degree of spinal stenosis at L3-L4 level. Also, there was neural foraminal narrowing at those levels. Spinal x-ray revealed moderate levoscoliosis measuring 27 degrees at T11 to L4 in 1998. Dr. Nau stated that more likely than not due to his acute injury suffered in 1976, the Veteran's spinal condition progressed and became much more complicated than what he enlisted with in 1974. Dr. Nau explained that mild scoliosis is generally not considered serious and requires no treatment; however, when complicated by injury it is as prone, if not more prone, to serious consequences. She stated that, in this case, it is as likely as not that the Veteran's back condition was aggravated by service. The Veteran was afforded a VA examination in April 2011. The examiner noted that the claims folders were not available for review at the time of the examination. The Veteran indicated that he injured his back while playing football in 1973 prior to military service; while in service, he slipped and fell during guard duty and reinjured his back. The Veteran indicated that he was put on bed rest and returned to full duty in 3 months. He did not remember any other injury to the back but states that as a machinist, he had to lift and carry heavy equipment and do heavy work and claims that is what aggravated and caused the back problem. Following an examination of the back, the examiner reported a diagnosis of lumbosacral spine degenerative joint disease. The examiner stated that the Veteran complained of low back pain with pain going down both legs; he dates this to the time of his military service. It is noted that he had levoscoliosis prior to entering military service and an injury during military service. He reported suffering one injury while he was in the military. The examiner stated that, given these facts, it would appear that he went into the military with a preexisting condition, namely scoliosis and did injure the back going in. He had a single injury that took about 3 months before he went back to full duty. There is no evidence of further injury. Thus, it would be reasonable to assume that his low back problem was aggravated during his military career, but then it resolved and there is no evidence that he had further back problems during his military career. The examiner concluded that it is less likely as not that his low back condition was permanently aggravated as a result of military service. The Veteran's low back condition was temporarily aggravated during his military career, but resolved shortly after. There is no evidence that this aggravation permanently persisted. The low back problem and scoliosis is a preexisting condition and there is no evidence that the military career caused this condition; there is also no evidence to link his current back problem with his military career. In an addendum, the examiner noted that the claims folder was now available for review. On reviewing the claims file and service file, it is noted that during the last year of his service career, namely in 1976, he complained a number of times of his back. On January 5, 1976, there is a note which states "left -sided low back pain, intermittently, approximately every week since 1973, when he sustained a twist injury to the back playing football." He entered military service in 1974; hence, this predated his service career. The VA examiner further noted that the Veteran had scoliosis prior to entering service. On leaving the service, he had no evidence of continued of continued back problems. On April 1, 1998, it was noted that "1997 trauma on the job, pulling heavy container, developed sciatica and has been treated by physical therapy" and also there is a mention of medications that he was given. Following clinical examination, the examiner stated that "it is less likely as not that his low back condition was permanently aggravated as a result of military service. The Veteran's low back condition was temporarily aggravated during his military career but resolved shortly after. There is no evidence that this aggravation permanently persisted." The examiner stated that this conclusion stands because it would appear that between 1976 and the mid-1990's there was no evidence that his back was acting up, and there is note on April 1, 1998 that he was injured on the job pulling a heavy container. Hence, it would appear that although he temporarily aggravated his back condition during his military career, this resolved and he was able to work a job doing heavy lifting without problems until he injured his back in 1998. III. Legal analysis. Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). When determining whether a disability or disease was incurred in service, or preexisted service, a Veteran shall be presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). 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. 38 U.S.C.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). A preexisting 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. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Aggravation for purposes of entitlement to VA compensation benefits requires more than that a preexisting disorder become intermittently symptomatic during service; rather, there must be permanent advancement of the underlying pathology. Aggravation is characterized by an increase in the severity of a disability during service, and 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 preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, is worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991); Verdon v. Brown, 8 Vet. App. 529, 536-7 (1996). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The evidence of record clearly establishes that the Veteran's thoracolumbar scoliosis preexisted his military service. Significantly, the Veteran's 1974 service entrance examination report notes that he had scoliosis of the thoracolumbar spine. In addition, in January 1976, the Veteran himself reported having left sided lower back pain intermittently since 1973 when he twisted his back playing football. There is also the April 1976 Medical Board report that contains findings that he was not fit for duty due to a pre-existing thoracolumbar scoliosis. The Veteran did not submit a statement in rebuttal to the Medical Board's findings and recommendations. Since thoracolumbar scoliosis was noted upon the Veteran's enlistment examination, the presumption of soundness does not apply. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (only where a condition is recorded in an examination report is it presumed to pre-exist service). The Board now turns to the question of whether the pre-existing thoracic back disorder was aggravated by service, to include the question of whether any current thoracolumbar spine disorder represents an aggravation of the pre-existing back disorder. However, in this case, there is no evidence that the Veteran's pre-existing lumbar spine disorder underwent a permanent increase in severity during service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). Although the Veteran was repeatedly treated for back pain throughout his period of active military service and treatment records regularly reveal diagnoses of scoliosis, the symptoms that he complained about were temporary or intermittent flare-ups, and not a permanent aggravation of the disorder. See Jensen, 4 Vet. App. at 306-07; Hunt, 1 Vet. App. 292; Verdon, 8 Vet. App. at 536-7. As noted above, STRs reveal that the Veteran was treated for chronic back pain and, in April 1976, the Medical Board found that the scoliosis preexisted service and was not aggravated by service. On the occasion of an initial VA examination following service in July 1976, the Veteran was diagnosed with scoliosis to the left lumbar region, mild. The Board has also considered the private medical opinion of Dr. Paula K. Nau, dated in December 2009, who opined that the Veteran's degenerative disc disease from L3 to S1, with moderate degree of spinal stenosis is more likely due to his acute injury suffered in service in 1976 and that it is as likely as not that his back condition was aggravated by service. Dr. Nau stated that mild scoliosis is not considered serious and requires no treatment; but when complicated by injury, it is prone to serious consequence. However, the STRs are completely silent with respect to any back injury in service in 1976; this discrepancy substantially reduces Dr. Nau's opinion since the basis of his opinion is that the Veteran's back condition was aggravated by an injury. The Court has found that the weight of a medical opinion is diminished where the opinion is based on an inaccurate factual premise or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 548 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Service connection can only be established if the pre-existing thoracolumbar scoliosis was aggravated in service. The Board acknowledges the December 2009 private medical opinion which stated that the back condition was aggravated by service; however, this opinion is of little probative value. According to CAVC, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. The Board notes that the 2009 private examiner stated that the Veteran's back condition was aggravated by service, but did not provide an opinion with regard to permanent aggravation. Furthermore, while Dr. Nau noted a finding of degenerative disc disease and spinal stenosis, she failed to identify which back condition was aggravated by service. It is noteworthy that Dr. Nau failed to report the post service injury suffered by the Veteran in 1997 prior to the finding of degenerative disc disease in 1998. Accordingly, this opinion lacks probative value. On the contrary, following a VA examination in April 2011, a VA examiner, after reviewing the claims file and examining the Veteran, opined that "it is less likely as not that his low back condition was permanently aggravated as a result of military service. The Veteran's low back condition was temporarily aggravated during his military career but resolved shortly after. There is no evidence that this aggravation permanently persisted." The examiner stated that this conclusion stands because it would appear that between 1976 and the mid-1990's there was no evidence that his back was acting up, and there is note on April 1, 1998 that he was injured on the job pulling a heavy container. Hence, it would appear that although he temporarily aggravated his back condition during his military career, this resolved and he was able to work a job doing heavy lifting without problems until he injured his back in 1998. The Board finds the 2011 VA examiner's opinion to be highly probative as it is predicated upon a thorough review of the claims folder and contains a complete rationale with discussion of the Veteran's entire medical history. The VA examiner found both that the Veteran's preexisting thoracolumbar scoliosis was not permanently aggravated by service and that his current back disability, degenerative disc disease, was not caused or aggravated by service. The examiner accurately described the pre-service, in-service, and post-service evidence and explained the reasons for his conclusions, i.e., scoliosis prior to entering service, no evidence of continued back problems upon leaving service, and a notation of "1997 trauma on the job, pulling heavy container, developed sciatica and treated by physical therapy." Thus, the April 2011 VA examiner's opinions indicating a lack of aggravation of the preexisting back injury and the lack of a relationship between current lumbar spine DDD and service are entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304(2008) (most of the probative value of a medical opinion comes from its reasoning). Given the foregoing, the Board concludes that the credible and probative evidence of record clearly and unmistakably establishes that the Veteran's preexisting thoracic scoliosis preexisted service and was not permanently aggravated during service. In the absence of competent medical evidence that the Veteran's current spine disorder, thoracolumbar scoliosis with degenerative disc disease and stenosis at L3 through S1, was incurred in or aggravated by his military service, the preponderance of the evidence is against the Veteran's claim for service connection for a thoracolumbar spine disorder. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for thoracolumbar scoliosis with degenerative disc disease and stenosis at L3 through S1 is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs