Citation Nr: 1306489 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 08-07 427 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for a low back strain. 2. Entitlement to service connection for scoliosis of the lumbar spine. 3. Entitlement to service connection for rotoscoliosis of the lumbar spine. 4. Entitlement to service connection for spondylolisthesis. 5. Entitlement to service connection for spondylolysis. 6. Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine. 7. Entitlement to service connection for degenerative joint disease (DJD) of the lumbar spine. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active military service from January 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the RO. In that rating decision, the RO denied entitlement to service connection for residuals of a lumbar spine injury. The Board remanded the claims on appeal in June 2009, March 2010 and August 2012 for additional development. The requested development has been completed and the matters on appeal have been returned to the Board for further consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issues of entitlement to service connection for spondylolisthesis, spondylolysis, DDD of the lumbar spine and DJD of the lumbar spine are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Lumbosacral muscle strain had onset during active service. 2. Scoliosis was not manifest during service and is not attributable to service. 3. Rotoscoliosis is attributable to service. CONCLUSIONS OF LAW 1. Lumbosacral muscle strain was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). 2. Scoliosis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). 3. Rotoscoliosis was incurred in service. 38 U.S.C.A. §§, 1110, 5103, 5103A, 5107 (West 2002 & Supp 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a December 2006 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and examination reports. The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009); Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir.2006). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A pre-existing 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). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). To rebut the presumption of sound condition where a condition is not noted at service entry, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The clear and unmistakable evidence standard requires that the result be undebatable. Cotant v. West, 17 Vet. App. 116, 131 (2003). In considering the effect of section 1111 on claims for service-connected disability, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has stated that 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. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (citing 38 U.S.C.A. § 1153). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis As an initial matter, the Board notes that in the September 1966 Report of Medical History associated with his enlistment examination, the Veteran reported that he received treatment for a muscle spasm two months prior. The physician documented strained lumbar muscle after heavy lifting, normal x-rays. However, on the September 1966 enlistment examination, clinic evaluation of the Veteran's spine was normal. Given these enlistment records, without additional documentation, the Board finds that a chronic lumbosacral strain did not clearly and unmistakably exist prior to his entrance onto active duty. Accordingly, the presumption of soundness is not rebutted. Thus, the remaining question is whether the Veteran has a current lumbar spine disorder that is attributable to disease or injury incurred in service. A January 1968 service treatment record reflects that the Veteran injured his back while loading ammunition into a truck. The diagnosis was muscle spasm. On the January 1969 Report of Medical History associated with his separation examination, the Veteran denied having any history of recurrent back pain. On his January 1969 separation examination, clinical evaluation of his spine was normal. A December 2006 VA treatment record reflects the Veteran's complaint of back injury in service with a history of chronic intermittent pain since that time. For the past month he had been having uncontrolled pain in his low back. The assessment was low back pain (appears localized to left SI joint). January 2007 X-ray report showed mild rotoscoliosis of the lumbar spine convex to the left. Disc joints narrowing was seen at multiple levels, probably related to the scoliosis. Additionally, there was Grade 1 spondylolisthesis with bilateral spondylolysis between L5 and S1. Spina bifida was noted of L5. August 2009 report of VA examination document the Veteran's complaint of initial episode of low back pain occurring in 1968. The Veteran reported that he bent over to carry 75-pound artillery shells when he had a sudden onset of low back pain which incapacitated him. He indicated that it took several weeks to get over but he eventually returned to normal activities. He reported that he continued to have back problems (with episodes of severe back pain twice per year) since that initial episode (age 20) until the present time. He noticed that the back pain had gotten particularly worse over the last one to two years. The pain was located at the beltline lumbar paraspinal muscle area. He had no symptoms of radiation into the lower extremities. He described the pain as a constant soreness in the lumbar area with periodic episodes of severe pain that made it hard for him to get out of bed. He had no limitation of distance walking and slept fine at night. He had worked for the past 23 years in the post office, primarily inside doing desk work (no real walking routes). He had recently retired but had not missed any work over the past year due to his back pain. He could perform all activities of daily living. X-ray report showed, and on examination the diagnosis was, Grade 1 anterolisthesis of L5 on S1 with narrowing of the disc space. In an October 2009 addendum, the examiner opined that the current chronic low back pain was less likely as not caused by or a result of the episodes of lumbar strain while in the military. The examiner explained that the Veteran had spina bifida, a congenital abnormality. The examiner also explained that the Veteran had diffuse degenerative changes of the lumbar spine which was more related to a gradual aging process. The examiner noted that the Veteran had subjective complaints of pain for many years but no constant treatment. The Veteran's report of service injury and current symptoms remained generally unchanged on report of VA examination in May 2010. On examination, the diagnoses were lumbosacral muscle strain, underlying mild diffuse degenerative joint disease (DJD), anterolisthesis (Grade 1) of L5 on S1 and spina bifida. The examiner explained that the term "strain" was used for muscles and the term "sprain" was used for ligaments (thus, the Veteran's back disorder was a muscle strain); the Veteran had spina bifida, a congenital defect; he did not have scoliosis; his multilevel DJD was expected for someone his age; and, his anterolisthesis of L5-S1 could be congenital or acquired but the only way to resolve this would be to compare to x-rays of his low back when he was young (such x-rays were not available), thus it could not be related to his complaints of low back pain in service without resorting to speculation. The examiner did comment that the anterolisthesis was not caused by his congenital spina bifida; however, it could be a concomitant congenital defect. The Veteran's report of service injury and current symptoms remained generally unchanged on report of VA examination in October 2012. On examination, the diagnoses were degenerative disc disease (DDD) of the thoracolumbar spine and rotoscoliosis. The examiner noted that the Veteran strained his back in service with continuation off and on in life. Therefore, the examiner opined that it was as likely as not that the Veteran's current lumbosacral strain was incurred in service. The examiner further explained that rotoscoliosis could be congenital or acquired. Given that the Veteran denied any serious low back injuries after service, the examiner opined that his rotoscoliosis as likely as not was related to service. The examiner further explained that anterolisthesis and spondylolysis (complication of DDD) could be congenital or acquired; however, there was no previous low back x-rays for comparison to determine which was applicable in this case and therefore any opinion offered in this regard would be speculation. In this case, the Board finds the Veteran's assertion of in-service back injury to be competent and credible and his assertions are confirmed by the service treatment records. Further, his report of continuity of symptoms is credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Taking into account the statements of in-service injury and continuity of symptoms which the Board has found credible in light of the October 2012 report of VA examination in which the examiner opines that the Veteran's lumbosacral strain was as likely as not incurred in service, the Board finds that the weight of the evidence supports a relationship between the current low back strain and in-service injury to the Veteran's low back. Accordingly, service connection for low back strain must be granted. The evidence does not establish that the Veteran has scoliosis; therefore service connection for scoliosis is not warranted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the weight of the evidence supports a relationship between his rotoscoliosis and in-service events. Accordingly, service connection for rotoscoliosis of the lumbar spine must be granted as well. ORDER Entitlement to service connection for low back strain is granted. Entitlement to service connection for scoliosis of the lumbar spine is denied. Entitlement to service connection for rotoscoliosis of the lumbar spine is granted. REMAND At the outset, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has determined that a remand by the Board confers upon a claimant, as a matter of law, the right to compliance with remand orders. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In the August 2012 remand, the Board requested that the RO obtain a VA opinion, from a provider other than the one who provided the August 2009 and May 2010 opinions, to address the etiology of the disorders of the spine. However, the October 2012 VA opinion was provided by the physician who provided both the August 2009 and May 2010 opinions. Thus, further remand is required to correct this deficiency. See Stegall supra. To reiterate, in the September 1966 Report of Medical History associated with his enlistment examination, the Veteran reported that he received treatment for a muscle spasm two months prior. The physician documented strained lumbar muscle after heavy lifting, normal x-rays. On the September 1966 enlistment examination, clinic evaluation of the Veteran's spine was normal. Thus, for purposes of the opinion, the examiner should assume that the Veteran was sound on entering service. A January 1968 service treatment record reflects that the Veteran injured his back while loading ammunition into a truck. The diagnosis was muscle spasm. On the January 1969 Report of Medical History associated with his separation examination, the Veteran denied having any history of recurrent back pain. On his January 1969 separation examination, clinical evaluation of his spine was normal. Subsequent to service, the Veteran's spine disability has been variously diagnosed as lumbosacral muscle strain, underlying mild diffuse degenerative joint disease (DJD), rotoscoliosis, anterolisthesis (Grade 1) of L5 on S1 (Grade 1 spondylolisthesis with bilateral spondylolysis between L5 and S1)and spina bifida. As noted herein above, service connection has been established for lumbosacral muscle strain and rotoscoliosis. However, the opinion offered as to the etiology of the spondylolisthesis, spondylolysis, DJD of the lumbar spine and DDD of the lumbar spine is vague and requires clarification on remand. Accordingly, the case is REMANDED for the following action: 1. The RO must forward the Veteran's claims file to an orthopedic specialist, specifically, and not the physician who provided the August 2009, May 2010 and October 2012 opinions. The orthopedic specialist must document that he/she is an orthopedic specialist and must provide qualifications related thereto. The orthopedic specialist is to accept the Veteran was sound on entry into service, sustained back injury in service and has experienced pain continuously since that time. Following review of the Veteran's claims file, to specifically include his service treatment records and the August 2009, May 2010 and October 2012 VA examination reports, the orthopedic specialist should answer the following questions: (1) Were the in-service manifestations consistent with:(a) degenerative disc disease of the lumbar spine; (b) spondylolysis; (c) spondylolisthesis; (d) degenerative joint disease of the lumbar spine? (2) Is there any relationship (causation or aggravation) between: (a) degenerative disc disease of the lumbar spine; (b) spondylolysis; (c) spondylolisthesis; (d) degenerative joint disease of the lumbar spine and the service-connected lumbosacral strain or rotoscoliosis? All opinions and conclusions expressed by the orthopedic specialist must be supported by a complete rationale. 2. Then, the RO should readjudicate the Veteran's claims for entitlement to service connection for spondylolisthesis, spondylolysis, degenerative disc disease of the lumbar spine and degenerative joint disease of the lumbar spine. If the determinations remain unfavorable to him, he must be furnished with a Supplemental Statement of the Case regarding these issues, and given an opportunity to respond thereto. Then if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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. 2012). ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs