Citation Nr: 1304709 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 03-28 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and T.P. ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from December 1969 to September 1972 and April 1980 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2003 rating decision of the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2004, the Veteran, accompanied by his authorized representative and T.P., appeared at a hearing held before the undersigned Acting Veterans Law Judge in Washington, D.C. A transcript of that hearing has been associated with the claims file. In July 2006 and July 2008 decisions, the Board remanded the claim for additional development and adjudicative action. The case was returned to the Board for further appellate review, and in October 2010, the Board denied the claim for service connection. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). By order dated January 2012, the Court granted a Joint Motion for Remand (Joint Motion), vacated the October 2010 Board decision, and remanded the case for compliance with the terms of the Joint Motion. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. Scoliosis with leg length discrepancy is a congenital or developmental defect. 3. No other back disability was present during the Veteran's active military service or until years thereafter, and no such disability is etiologically related to the Veteran's active military service or superimposed on a congenital defect. CONCLUSION OF LAW A back disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 4.9 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), and implemented by 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA has a duty to notify the Veteran of any information and evidence needed to substantiate and complete a claim. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO sent the Veteran a letter in February 2002, which informed him of the requirements needed to establish entitlement to service connection. In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. Subsequent VA and private medical records were added to the claims file. The Veteran was informed by a separate July 2006 letter, as to how an appropriate disability rating and effective date would be assigned if his claim was granted, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. See February 2008 Supplemental Statement of the Case (SSOC). There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. In September 2007 the Veteran underwent a VA examination specifically for his claimed back disability and, based on the report provided by the examiner, the examination included a review of his claims file. Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (Regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of a veteran's claims folder). As noted above, this case was remanded in July 2006 and July 2008 for additional development. Specifically, in July 2006, the Board directed that the Veteran be provided with notice in accordance with Dingess and scheduled for a VA examination to determine the etiology of any current back disability, and that the RO/AMC obtain copies of treatment records from the Charleston, South Carolina VA Medical Center (VAMC). The notice was provided in July 2006, the examination was conducted in September 2007, and the report of that examination, as well as treatment records from the Charleston VAMC, has been associated with the claims file. The AMC allowed the Veteran an opportunity to respond before readjudication of the claim in a February 2008 SSOC. In July 2008, the Board remanded the claim for additional review of the claims file and a new medical opinion to clarify the September 2007 medical opinion. The review and clarifying opinion were provided in November 2008. The AMC allowed the Veteran an opportunity to respond before readjudication of the claim in a September 2009 SSOC. Thus, the Board finds that all actions and development directed in earlier remands have been completed. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board concludes that all available, identified evidence has been obtained and that there is sufficient medical evidence on file upon which to make a decision on the issue decided on appeal. In sum, the record reflects that the facts pertinent to this claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103. Accordingly, the Board will adjudicate the claim on the merits. Service Connection - Legal Criteria Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). 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). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. VA's General Counsel has further explained that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin, as long as the evidence as a whole establishes that the familial conditions in question were incurred or aggravated during service within the meaning of VA laws and regulations. VAOPGCPREC 82-90 (July 18, 1990). VA's General Counsel has also expressly stated that the terms "disease" and "defects" must be interpreted as being mutually exclusive. The term "disease" is broadly defined as any deviation from or 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 and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defects" would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature. See VAOPGCPREC 82-90 (July 18, 1990). However, VA General Counsel has further noted that if, during service, superimposed disease or injury occurs, service connection may be warranted for the resultant disability. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993) (citing Hunt v. Derwinski, 1 Vet. App. 292 (1991)); VAOPGCPREC 67-90 (July 18, 1990). Every person employed in the active military, naval, or air service shall be taken 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. See 38 U.S.C.A. §§ 1111, 1137. To rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Factual Background and Analysis The Veteran seeks service connection for a back disability, alleging that injuries (back sprains after lifting a battery and pushing tires (per brief of November 2003 and statement of February 1990) and back injury after unloading a lawnmower from a truck (per statements of February 1990 and October 1994, and August 2004 hearing testimony)) experienced during service resulted in current disability. The Veteran also alleged in an August 2006 statement that, although his scoliosis pre-existed service, it was aggravated by the noted in-service injuries and resulted in the current back disabilities. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim as the Veteran's scoliosis is a congenital back defect. Moreover no other back disability was present during his active military service or until years thereafter, and no such disability is etiologically related to his active military service. In the present case, the Veteran entered into active service in December 1969. His STRs reflect that scoliosis (dorsolumbar, less than one (1) inch to the left) was observed during his October 1969 pre-enlistment examination and he also reported leg cramps. A May 1970 X-ray report confirmed a diagnosis of mild lumbar scoliosis and revealed no other abnormalities. A June 1970 STR reflects that he was observed to have a three-quarters (3/4) inch leg length discrepancy (right longer than left). He was provided lifts for his shoes. In October 1970, the Veteran sought treatment for back pain and an X-ray studies revealed mild lumbar scoliosis; he was diagnosed as having a strain. In January 1972 the Veteran again sought treatment for back pain, which he described as existing for the past two (2) months, in the L3-L4 area. He was diagnosed with an acute back strain, advised to continue using his lifts, and was put on restricted duty. During the August 1972 separation (first term of service) examination, the Veteran reported recurrent back pain but physical evaluation of the back was normal. He re-enlisted in March 1980 and his re-enlistment examination reflects that he was evaluated as normal although a March 1980 scanogram revealed that his right leg was longer than his left. In November 1980 the Veteran was treated for an injury to his back incurred after lifting batteries; the treatment record reflects that he also reported experiencing chronic back pain over the past six (6) years. He was diagnosed with back muscle spasms. He reported continued pain in December 1980 and a physician observed slight lordosis and tenderness in the lumbosacral area; he was again diagnosed with back strain. In January 1981, the Veteran was seen for complaints of back and knee pain; the record reflects that he reported experiencing pain for about one (1) year and was diagnosed as having a possible fact syndrome. The Veteran was seen four (4) times in February 1981. He complained of diffuse tenderness in the lumbosacral area and the treating provider noted "? early ankylosing spondylosis?"; however, he then received a bone scintigraphy that did not reveal any definite evidence of joint disease. The Veteran reported tenderness of his mid-thoracic and lumbar spine and was again diagnosed with scoliosis. The third February 1981 treatment note shows that the Veteran reported experiencing pain in his lumbar area after pushing tires; he was diagnosed with lumbar strain (muscle spasm and tenderness). In March 1981, the Veteran was seen again for complaints of back pain. An April 1981 treatment record reflects a history of scoliosis and leg length discrepancy. A December 1981 X-ray report showed slight rotoscoliosis of the lumbar spine, convex to the left, without any evidence of spondylosis or spondylolisthesis. His sacroiliac joints were described as unremarkable. A November 1982 treatment note reflects a history of back pain, exacerbated by heavy lifting, and shows that the Veteran was advised, temporarily, not to lift any objects weighing more than 20 pounds. The Veteran was evaluated for a mental health disorder in April 1984 and subsequently was found unfit and discharged due to a mental disorder. His evacuation tag and discharge examination notes reflect a history of paranoid schizophrenia, drug use, alcohol dependence, hypertension, and venereal disease, but do not discuss a back disability. Following his separation from service, the Veteran received an examination of his back in February 1985. X-ray studies revealed that he had slight straightening of lordotic curvature of the lumbar spine, but that his spine was otherwise unremarkable. The examiner diagnosed lumbosacral scoliosis and observed that recurrent mild back pains had been aggravated by strenuous activity. An October 1989 VA treatment note states that the Veteran had scoliosis since childhood, causing his left leg to be shorter than his right, and he had no current evidence of arthritis, muscle pain, deformities, or trauma. He was diagnosed with scoliosis of the lower thoracic, lumbar spine. The Veteran received treatment for back pain in June 1990 and was again observed to have a leg length difference due to scoliosis. Orthopedic treatment was recommended. In April 1991, the Veteran received domiciliary care and his medical history reflects both scoliosis and "low back syndrome." The Veteran was afforded a VA examination of his back in November 1992 and was noted to have "degenerative joint disease of the lower back and possibly left knee." However, the report of X-ray studies obtained in conjunction with that examination revealed mild scoliosis of the lumbosacral spine, but disc spaces were normal and "no definite arthritic change or other pathology [wa]s seen." March 1994 X-ray studies showed mild to moderate narrowing of the disc space of L5-S1, without fracture or dislocation, and mild scoliosis to the left at L4-L5. In July 1996, the Veteran was seen for treatment of an unrelated condition and his part medical history was observed to include scoliosis. In September 2000, the Veteran was seen at a VA mental health clinic for depleted prescriptions. The record reflects that he also informed the examining physician's assistant that he was experiencing increased, over the past several months, arthritic pain in the lower and upper back and had been diagnosed with degenerative joint disease (DJD) of the spine, by X-ray studies last year. In October 2001, the Veteran reported persistent lower back pain with radiculopathy. He was seen for complaints of back pain in January 2002 and "very mild scoliosis [was] noted." The Veteran was seen again in August 2002 and the physician noted that x-rays revealed some end plate sclerosis at L5-S1 as well as some facet hypertrophy and facet sclerosis and osteophytes. He was diagnosed with lumbar spondylosis and low back pain. A September 2002 X-ray study resulted in diagnosis of lumbar spondylosis, which the physician noted might be related to facet arthropathy. In December 2002, the Veteran was noted to have new onset low back pain, of one (1) and a half years, maybe related to facet arthropathy with a slight possibility of disc-related symptoms. A January 2003 treatment note reflects that the Veteran's back was again assessed; the note indicates that he reported experiencing one instance of his back giving out when he was 19, but no incidents or pain since that time until one year ago. X-ray studies showed lumbar spondylosis with some sclerosis and facet hypertrophy in the L5-S1 area. Another January 2003 note observes the Veteran's history of scoliosis and states that "about a year and a half ago, he spontaneously stated having low back pain that radiates to his hip." He received an MRI that revealed moderate degeneration of the L4-5 and L5-S1 discs with adjacent end plate changes, disc bulging, facet hypertrophy, and stenosis. A May 2003 treatment note shows that the Veteran reported to treatment of back pain, severe for the past two (2) weeks, after moving from Cleveland; he noted his history of scoliosis, stated that he injured his back in service, and denied any recent injury. The Veteran was again observed to have low back pain and scoliosis in a January 2004 treatment note; an addendum reflects that the physician reviewed the Veteran's older treatment records, but found "nothing of significance," although "more recent records... indicat[e] spinal stenosis and facet arthritis." A February 2004 MRI showed narrowing of the disc space with stenosis at L4-5 and L5-S1, a left paracentral disc bulge and root narrowing at L2-3 and L3-4; he was diagnosed with discogenic disease and disc bulge. In March 2004, the Veteran was seen after experiencing a motor vehicle accident; he received physical therapy in April 2004. A July 2004 note states that the accident had resulted in increased pain in the L4-5 region and reflects a pain management consultation. A September 2004 mental health treatment note observes that the Veteran was treated for a number of issues including lower back pain with a radicular component since 2000. He received a pain medication injection in October 2004. A November 2004 pain management note reflects that his lower back pain was improved, but he was experiencing pain in his upper back. He presented for treatment of pain again in December 2004, describing a history of scoliosis, injury in 1972 and motor vehicle accident in March 2004. In January 2005, he was seen for pain management and reported that he was doing better, but continued to experience pain in the lumbar region. The Veteran was noted in a February 2005 treatment note to have a history of degenerative disc disease and impingement on the left side; he reported severe lower back pain radiating down his right side. In March 2005, he was assessed as having chronic lower back pain with foraminal stenosis with bulge and impingement. An April 2005 treatment note reflects that he underwent magnetic resonance imaging (MRI) studies and was diagnosed as degeneration and pain at the L4-5 (mild/moderate central canal stenosis and severe bilateral neural foraminal stenosis observed) and L5-S1 (disc bulge and narrowing observed) levels with doubtful hip pathology; these results are reiterated in a September 2005 note. The April note describes the Veteran's back pain as chronic and severe since 2000 with re-injury in a winter 2004 motor vehicle accident. A private treatment note of June 2005 shows that the Veteran received an X-ray study of his back and was diagnosed with degenerative disc disease - there was no evidence of spondylolisthesis, but a "manifestation of a long S-shaped thoracolumbar scoliosis" and facet osteoarthritis. A September 2005 VA treatment note observes extremity weakness due to the March 2004 motor vehicle accident. A February 2006 note reflects that the Veteran reported experiencing back pain for ten (10) years with worsening after 2002. In March 2006, he was assessed with lower back pain and pain in his right hip. April and May 2006 treatment notes provide an assessment of multilevel lumbar spondylosis which is reiterated in a December 2006 treatment note. In December 2006, the Veteran's primary VA physician wrote a letter observing that he was totally and permanently disabled. The letter states that he experiences disabling lower back pain, which is exacerbated by manual labor, and discusses other conditions such as mental health and renal disorders. The letter does not discuss the etiology of any current condition. The Veteran was afforded another VA examination of his back in September 2007. The examiner reviewed his service treatment records and post-service medical history, observing that scoliosis was noted at time of induction and, in 1970, low back pain was noted secondary to a leg length discrepancy. The examiner noted that the Veteran reported that he left service in 1972 to work in a warehouse, then drove trucks, worked as a hairdresser, and then worked in heavy equipment maintenance (the Board observes that this history is supported by Social Security Administration records within the claims file). The examination report also reflects that the Veteran stated he had an on-the-job injury to his back in 1973, in between his periods of service. On physical examination in September 2007, the Veteran was noted to be "without any severe degree of scoliosis" or palpable spasm. On the basis of MRI evidence, he was diagnosed with degenerative disc disease. Based on the medical evidence of record and the history provided by the Veteran and other evidence of record, the examiner opined that the symptoms experienced by the Veteran during service were a result of his pre-existing scoliosis and leg length differential. The examiner further stated that symptomatology experienced prior to more recent years was not consistent with degenerative disc disease. However, the examiner further noted both that he did not see any evidence of worsening of scoliosis during service and that underlying condition was worsened beyond natural progression during his service. Due to the inherent conflict within those statements, the examination report and claims file was provided to a new examiner in November 2008 for a clarifying opinion. The November 2008 VA physician stated reviewed the claims file and noted that the Veteran was seen on numerous occasions during his first period of service for low back pain and low back syndrome; all these episodes were ascribed to his scoliosis and leg length discrepancy. In between his periods of service, the Veteran sustained a work injury to his back in 1973 that resulted in his being out of work for more than one year. During his second period of service, he reported complaints of back pain but discharge examination was negative for any chronic back disability. The VA physician stated that the Veteran's mild lumbar scoliosis and leg length discrepancy were congenital defects. He also stated that the Veteran's current lumbar spondylosis and degenerative disc disease were "superimposed" on the congenital defects; however, there was "no indication" that these disabilities as related to the congenital defects. Moreover, he stated that it is not likely they are related to either period of the Veteran's military service. After reviewing all of the evidence of record, the Board denied entitlement to service connection for a back disability in October 2010. In the January 2012 Joint Motion endorsed by the Court, the parties stated (in pertinent part) that the Board failed to provide adequate reasons or bases for its findings. The parties agreed that remand was required because, although the Board generally noted that the November 2008 VA medical opinion explained that scoliosis is a congenital defect - not a disease - it did not discuss the law pertaining to service connection as to congenital defects and the impact that a finding of a congenital defect has on the claim. The Board also did not address the significance of the November 2008 VA medical opinion's finding that the Veteran has lumbar spondylosis and degenerative disc disease "superimposed" on the congenital defect and whether service connection may be warranted for the resultant disability. Upon review of the evidence, the Board finds that service connection for scoliosis with leg length discrepancy, a congenital or developmental defect, cannot be granted in this case, as it is not considered a disease or injury for VA purposes. See 38 C.F.R. §§ 3.303(c), 4.9. In this regard, the medical evidence noted above shows that scoliosis with leg length discrepancy is a congenital defect that pre-existed the Veteran's entrance into service. See November 2008 VA medical opinion. There is no medical evidence to the contrary. Therefore, as a congenital defect, scoliosis with leg length discrepancy is not subject to service connection. There is also no evidence of record showing that the Veteran's congenital back defect was subjected to a superimposed injury during service so as to warrant service connection. As discussed in detail above, a chronic back disability did not start during service. The first diagnosis of such disability, as noted above, is years after the Veteran's discharge. Moreover, the November 2008 VA medical opinion essentially notes that all the Veteran's in-service back complaints were either related to his congenital defects or resolved prior to discharge. While the VA physician stated that the Veteran's current lumbar spondylosis and degenerative disc disease were "superimposed" on his congenital defects, he also stated that there was "no indication" that these disabilities as related to the congenital defects or to either period of the Veteran's military service. Clearly, then, the VA physician was not using "superimposed" as a term of art; rather, he was stating that the Veteran had back disability in addition to the congenital defects. There is no medical opinion to the contrary. Again, the Board notes that the Veteran's STRs are negative for findings related to lumbar spondylosis and degenerative disc disease. In addition, there is absolutely no medical evidence of a nexus, or relationship, between the lumbar spondylosis and degenerative disc disease first diagnosed post service and the Veteran's active military service. The Board has considered the lay statements in support of the claim, including the Veteran's statements that although his scoliosis pre-existed service, it was aggravated during service and resulted in his current back disabilities. In addition, the Board acknowledges that in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) the Federal Circuit held that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claim for service connection for a back disability, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a back disability is denied. ____________________________________________ K. R. FLETCHER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs