Citation Nr: 1306248 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-15 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran had active naval service from December 1966 to March 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 1970 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, and a December 2008 rating decision by the VA RO in Huntington, West Virginia. In connection with this appeal the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in April 2012. A transcript of the hearing is associated with the claims file. The matter was remanded in June 2012 for additional development of the record. The Veteran originally filed a claim of entitlement to service connection for a back disability in August 1970. In a September 1970 rating decision, the Veteran was denied entitlement to service connection for a back condition; however, the October 1970 letter sent to the Veteran notifying him of the decision erroneously informed him that his claim had been granted. The Veteran was not provided appropriate notice informing him of the September 1970 denial of entitlement to service connection for a back disability until September 2008. The Veteran submitted a timely notice of disagreement with the September 2008 notice in January 2009. Therefore, the September 1970 rating decision did not become final and is on appeal. The issue before the Board has been characterized accordingly. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is presumed sound upon entry into active duty service with respect to a back disability and the evidence does not clearly and unmistakably show that the Veteran's back injury both pre-existed service and was not aggravated during service. 2. The Veteran injured his lumbar spine in service in January 1967. 3. The Veteran was discharged from service as a result of back pain which was (at that time) attributed to a diagnosis first identified in service of congenital spina bifida occulta. 4. The competent and probative evidence of record establishes that the Veteran has never had the congenital defect of spina bifida occulta and the in-service diagnosis of spina bifida occulta was a misdiagnosis. 5. The Veteran's report of the onset of chronic back pain at the time of the January 1967 in-service injury and continuity of symptoms since service are credible. 6. The Veteran's current degenerative disc disease of the lumbar spine with disc space narrowing at L5-S1 status post discectomy cannot be satisfactorily disassociated from his in-service low back injury, which was misdiagnosed in service as spina bifida occulta. CONCLUSION OF LAW A lumbar spine disability was incurred during service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The grant of service connection for a lumbar spine disability constitutes a complete grant of the benefits sought on appeal with respect to that issue. As such, any defect with regard to VA's duty to notify and assist the Veteran with the development of his claim is harmless error, and no further discussion of VA's duty to notify and assist is necessary. The Veteran seeks service connection for the residuals of an in-service low back injury. He asserts that his current degenerative disc disease at L5-S1 occurred as a result of an in-service back injury. He maintains that his residual disability from that injury was subsequently misdiagnosed in service as spina bifida occulta. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may 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). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestations in service will permit service connection. To show 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". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When 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). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease such as hearing loss (an organic disease of the nervous system) to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1137; 38 C.F.R. §§ 3.307, 3.309. The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; VAOPGCPREC 3- 2003. The presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. See VAOGCPREC 3-2003. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In sum, when no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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). As noted, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). A review of the service treatment records (STRs) shows that in January 1967, the Veteran was seen at medical for complaints of back pain. He was seen several times thereafter for continued back pain. One examiner felt that the Veteran's back pain seemed out of proportion to superficial evidence of trauma, such as bruising, for example . After receiving treatment, the pain did not abate and the Veteran was referred to orthopedics for a consultation. At that time, the Veteran reported that his back pain was a result of a fall down some stairs in the recruit training area. X-rays taken at that time were deemed negative, but the examiner indicated that they revealed exaggeration of normal lumbar lordosis. The examiner noted that the Veteran specifically denied any previous back problem prior to his induction into the Navy. The impression was arthrogenic back pain with spina bifida occulta of L-5. It was determined that the Veteran was not fit for duty based on these findings and that the spina bifida occulta existed prior to service. Significantly, congenital or developmental defects are not diseases or injuries for VA compensation purposes. 38 C.F.R. § 3.303 (c). As a result, the Veteran was separated from active service. Despite the Veteran's denial of pre-existing back pain on examination, the STRs contain a handwritten note from March 1967 indicating that the Veteran reported to various examiners that he had occasional episodes of back pain for the last several years, and the author of the note apparently found this noteworthy because no such complaints were documented in the various write-ups. In this case, there is no clear and unmistakable evidence that Veteran had a chronic back disability prior to service. The entrance physical examination is silent in regard to preexisting back pains or a chronic back disability and the Veteran did not report any problems with back pain. In addition, a March 1967 entry notes that on examination, the Veteran specifically denied any previous back problems prior to his induction into the Navy. Although there is a handwritten note dated in March 1967 indicating that the Veteran reported occasional episodes of back pain for the last several years, the circumstances upon which this comment was made or presented to the author of that note was not made clear. In other words, the author of the note does not provide any other details to substantiate his claim that the Veteran verbally reported to various examiners in service that he had pre-existing back pain for several year. Thus, the March 1967 notation amounts to mere hearsay, which does not carry any significant probative value. Moreover, that note is in complete contrast to the rest of the STRs which tend to show that the Veteran did not have any reports of back pain prior to service. As the evidence of record does not clearly and unmistakably show that the Veteran's back disability existed prior to service, and was not aggravated in service, the Veteran is presumed sound at entry for purposes of this claim. Furthermore, with regard to the in-service diagnosis of spina bifida, there is competent medical evidence indicating that the Veteran does not, in fact, have spina bifida, as noted in greater detail below. For all the foregoing reasons, the presumption of soundness is not rebutted, and for adjudication purposes a back disability was not preexisting. The first post-service evidence showing complaints of back pain comes from the Veteran's initial claim of service connection, which was received at the RO in August 1970, only three years following discharge from service. The claim was denied because the RO determined that the Veteran's back pain was due to spina bifida occulta, a pre-existing congenital defect. Regarding treatment for back pain, a review of the post-service medical evidence shows that the Veteran has received treatment for complaints of back pain by private medical providers and at the VA Medical Center since at least 1989. The Veteran carries a diagnosis of degenerative disc disease (DDD) of the lumbosacral spine with disc space narrowing at L5-S1, status post discectomy. Additionally, a January 2009 private imaging study revealed no evidence whatsoever of spina bifida occulta. Based on this finding, the Veteran's private doctor opined that the Veteran did not have spina bifida occulta. See January 2009 private radiology report and September 2012 private memo from the Veteran's long-time doctor, O.G., M.D. In lay statements dated in November 2008, the Veteran's spouse and sister reported that the Veteran never complained about back pain prior to entering service in the Navy. In March 2010, the Veteran was afforded a VA examination. At that time, the examiner opined that the Veteran's current low back disability was more likely a result of his heavy duty profession and generalized degeneration due to age. In this regard, the examiner reported that the Veteran's complaints of back pain during active service were acute and self-limited in nature. The examiner also reported that the finding of spina bifida at that time was incidental and since the Veteran was only in active service for 4 months, the question of aggravation would not arise. Furthermore, the examiner reported that spina bifida was a congenital condition. Upon examination of the Veteran and a review of the most recent MRI report of December 2010, a VA neurosurgery resident, T.R., MD, and a neurosurgical staff surgeon, S.S., MD, agreed in February 2011 that the Veteran did not have spina bifida. At his April 2012 travel board hearing before the undersigned, the Veteran testified that when he injured his back in service in January 1967, he initially thought that he had bruised his tail bone, but then he was later told that he had spina bifida. The Veteran testified that he has had back pain ever since the fall in January 1967. The Veteran's spouse also testified that she knew the Veteran prior to service and that he appeared perfectly fine before service, but complained of back pain after service, and ever since. In a September 2012 statement, the Veteran's long-time physician, Dr O.G. noted that the Veteran had been an active patient at his clinic since 1987. He had been treated since that time for chronic pain of the lumbar spine. According to Dr. O.G., the Veteran indicated to him that his back pain began as a result of a fall in service in 1967, when he landed on his lower back and tailbone. Dr. O.G. also noted that the Veteran was diagnosed with spina bifida in service, but indicated that the Veteran did not have spina bifida based on recent MRI studies from 2009. Dr. O.G. opined that the Veteran's chronic [back] pain was most likely a direct result of the fall sustained in 1967, and that the Veteran did not have spina bifida. In a September 2012 statement, the Veteran's VA doctor in the Physical Medicine and Rehab department, Dr. D.R., MD, indicated that the Veteran had lumbar spine radiculopathy, and opined that the Veteran's low back and lower extremity pains were as likely as not related to the fall the Veteran related to him that he had in the military in 1967. At a VA examination in July 2012, the examiner confirmed that the Veteran did not have spina bifida. The examiner therefore concluded that no current back disability was aggravated by pre-existing spina bifida because the Veteran never had spina bifida. The examiner also opined that there was no aggravation of any claimed back pain diagnosed as lumbar spine during active service. At an August 2012 VA pain management consultation, the Veteran's medical history with regard to his back was listed. According to the report, the Veteran's back was injured in service in 1967. The Veteran underwent discectomy at L5-S1 for his low back and leg pain in 1989. In 1993, the Veteran again went for another discectomy for his right leg weakness. His pain in the back and legs has deteriorated over a period of time. The current diagnosis was degenerative disc disease, bilateral facet joint pain; chronic right L5-S1 radiculopathy; and peripheral neuropathy. In sum, the STRs reveal that the Veteran injured his back in service in January 1967 when he fell down some steps. The Veteran has provided additional details regarding his injury in both written statements and hearing testimony. In essence, the Veteran asserts that when he fell on his back, he landed on his tail bone and thought he either badly bruised, or broke, his tail bone at that time. The STRs further reveal that the Veteran was subsequently diagnosed with spina bifida occulta and released from active duty. Recent MRI studies have confirmed, however, that the Veteran does not have, and has never had, the congenital defect of spina bifida. Similarly, the evidence of record does not clearly and unmistakably show that the Veteran had a pre-existing back disability that was aggravated during service. Thus, the question becomes one of service connection. In this regard, the Veteran has reported that he has experienced back pain ever since his injury in service. He is competent to report such a symptom, as this does not required expert medical knowledge. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). Although the Veteran is competent to report a back pain since his in-service back injury, his statements in this regard are probative only if the Board finds him credible. In this case, there is no reason to doubt the Veteran's credibility, particularly because his statements are consistent with the medical evidence of record. First, the STRs specifically note an in-service back injury; and, the Veteran filed a claim of service connection for a back disability in 1970, only three years after discharge from service. The mere fact that the Veteran filed a claim of service connection is evidence in and of itself that the Veteran reported back pain at that time. Further, the Veteran had surgery in 1989, again in 1996, and currently has a diagnosis of degenerative disc disease of the lumbar spine. Even more important, current imaging studies, which were not available at the time of the spina bifida misdiagnosis in 1967 specifically reveal no spina bifida. It is a well-established medical principle that findings on an MRI study are more reliable and accurate than those findings obtained from x-ray films. Although the Veteran is not necessarily competent to opine as to whether his current back disability is a residual of the in-service injury in 1967, the record contains competent medical evidence to support the claim in this regard. As noted above, both a VA doctor and a private doctor have opined that the Veteran current lumbar spine disability is a direct result of the 1967 in-service back injury in service. Both of these opinions were provided with knowledge of the in-service misdiagnosis of spina bifida. Moreover, as spina bifida is known to affect the area of the lumbar spine around the tail bone, or L5-S1, it is certainly within the realm of possibility that x-rays taken at the time of the injury in 1967 could lead a medical staff to conclude that the Veteran had spina bifida instead of an actual injury to that area of the spine. Significantly service connection may 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). The fact that the Veteran's back injury in service was misdiagnosed as spina bifida cannot form the exclusive basis for a finding that a current back disability is not related to service. As such, the STRs noting a pre-existing spina bifida occulta carry no probative value. The Board is mindful of the negative VA opinion provided in March 2010. That examiner attributed the Veteran's current back disability to post-service manual labor jobs. Notwithstanding that medical opinion, when the entire record is reviewed together, and all reasonable doubt is weighed in favor of the Veteran, service connection for a low back disability is warranted. First, there is evidence of a current low back disability, and in particular one that involves the lumbar spine at L5-S1. Next, there is evidence of in-service injury to the lumbar spine, as noted in the STRs, along with the Veteran's credible statements as to the fact that he felt that he badly bruised, or broke, his tail bone. Finally, there are two competent medical opinions linking the Veteran's current lumbar spine disability to the documented in-service back injury. Although neither examiner provides a specific rationale for their opinion, the Veteran's reports of continuity of back pain since service are credible, and both examiners were aware of the in-service misdiagnosis of spina bifida. The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). However, the threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006). Accordingly, the weight of the probative evidence favors the claim, the benefit-of-the-doubt rule applies and service connection for a low back disability is warranted. See 38 U.S.C.A. § 5107 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disability is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs