Citation Nr: 1319803 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 04-35 459 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for low back disorder, to include as secondary to the service-connected leg length discrepancy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2001 to June 2003. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the RO. In March 2006, the Veteran testified before a Decision Review Officer (DRO) at a hearing held at the RO. A copy of the hearing transcript is of record. In April 2012, the case was remanded to the RO for additional development, via the Appeals Management Center (AMC). A review of the Veteran's Virtual VA electronic claims file reveals additional VA outpatient treatment records dated through January 2012. As these records have been previously considered by the AMC-as noted in the December 2012 supplemental statement of the case-remand for initial consideration of this evidence is not warranted. In February 2013 , the Veteran submitted additional evidence directly to the Board. In April 2013, the Veteran's representative submitted a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2012). FINDING OF FACT The currently demonstrated lumbosacral strain is shown as likely as not to have had its clinical onset during period of the Veteran's period of active service. CONCLUSION OF LAW As the presumption of soundness is not rebutted, the Veteran's disability manifested by lumbosacral strain is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 1132, 1154, 5103, 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 FINDING AND CONCLUSION Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). To the extent that the action taken herein below is favorable to the Veteran, the Board finds that further discussion of the requirements of VCAA is not required at this time. Factual Background The pre-service medical records show that the Veteran was treated for symptoms of acute back pain incurred as a result of busing tables for a restaurant in January 2000. A January 2000 x-ray study revealed findings of a bony minor degenerative spur formation at L5 and possible disc degenerative at L5-S1. An impression of acute lumbar strain was noted. An MRI dated in March 2000 noted an impression of mild annular bulging L4-5, but no evidence of disc herniation or spinal stenosis. A June 2000 report notes that the Veteran still had intermittent lumbar pain, but could return to his normal duties at work. Upon entrance into service in September 2001, the Veteran denied having recurrent back pain on August 2001 report of medical history. The spine and lower extremities were noted to be normal on examination. In July 2002, the Veteran presented with a history of back pain. He reported suffering from lumbar strain prior to service. It was noted that he was cleared to return to full work duties in June 2000. He denied having severe back symptoms since the injury, but indicated his back had never felt "great" since that time. An assessment of lumbosacral strain in the past was noted. In August 2002, the Veteran complained of low back pain with an onset 3 years earlier. Objectively, there was tenderness to palpation of the lower medial back. He was assessed with recurrent lumbosacral strain. The X-ray study of the lumbosacral spine was normal. In September 2002, low back pain, more prominent on the left side, with an onset 3 years prior was noted. A diagnosis of lumbosacral instability and chronic low back weakness secondary to perceived lumbosacral pain was noted. In September 2002, a leg length discrepancy was noted on x-ray study. It was noted that there was a 1.8 centimeter discrepancy with the right leg being greater. A September 2002 report reflects an assessment of leg length discrepancy leading to pelvic tilting and increased low back pain. A November 2002 x-ray study of the pelvis revealed uneven acetabuli that might have been the basis of the Veteran's position about leg length discrepancy. There were no fractures or degenerative changes. In October 2002, the Veteran was given a shoe insert with lift for his leg length discrepancy. In November 2002, the Veteran presented with pain in his left hip and right knee. He noted that his left leg was shorter than the right leg by 1.8 centimeters. He was instructed to continue wearing orthotics with heel lift in the left foot. The Veteran was recommended to appear before a Physical Evaluation Board with a diagnosis of leg length discrepancy, pelvis rotation, and lumbosacral instability in December 2002. A December 2002 podiatry report reflected that the Veteran complained of pain in the left hip and right knee. An assessment of leg length discrepancy was noted. The Veteran was instructed to continue wearing orthotics with heel lift in the left shoe of .8 centimeters. On a December 2002 report of medical history, the Veteran endorsed having recurrent back pain secondary to leg length discrepancy. A December 2002 examination report noted a 1.8 centimeter leg length discrepancy. A January 2003 podiatry report reflected the Veteran's complaint that his heel lifts aggravated the pain in his right knee and back. He was instructed to no longer wear a heel lift in the left shoe. A February 2003 orthopedic report reflects that the Veteran was on 8 months of limited duty for back pain. The Veteran stated that he was diagnosed with a leg length discrepancy and this was the cause of his low back pain. An examination revealed that the left leg was greater than the right by 1.2 centimeters. An impression of low back pain secondary to leg length discrepancy was noted. A treatment plan of a one-half inch heel lift on the right was noted. The Veteran was also recommended for administrative separation since his condition had not improved. An examination in March 2003,noted that the Veteran was found to have a leg discrepancy of nearly 2 centimeters, the left being longer than the right. The Veteran reported having low back pain secondary to the discrepancy. Heel lifts were applied without any significant improvement. He also tried muscle relaxers and anti-inflammatories with no relief. Objectively, the Veteran's gait was noted to be normal, and range of motion of the spine was also normal. An X-ray study of the lumbar spine was normal. A diagnosis of leg length discrepancy and low back condition secondary to the discrepancy was noted. It was also noted that there was an additional finding of early discogenic disease by previous MRI study. Following the Veteran's discharge from service, an October 2005 VA QTC examination report reflected that the Veteran related a history of leg length discrepancy for which he was treated for while in the service. He stated that, secondary to his leg length discrepancy, he developed mechanical low back pain. The treatment history reflected that he had `a shoe lift while in service. It was noted that the Veteran had a significant prior orthopedic history of a low back injury prior to entering service. He was treated with conservative management with physical therapy modalities and medications. He underwent an MRI that documented multilevel bulging discs with associated degenerative disc condition. An x-ray study revealed early L4-5, L5/S1 lumbar degenerative disc disease. An x-ray study of the pelvis was normal. After an examination, the examiner diagnosed lumbar degenerative disc disease with moderate mechanical low back pain and a right lower extremity leg length discrepancy of 2 centimeters. The examiner opined that the Veteran's degenerative disc disease with mechanical low back pain predated his entry date to the service and was directly related to his workers' compensation lifting injury in 2000. The examiner also found that the Veteran back problems were not permanently aggravated beyond normal progression by the leg discrepancy. In so finding, the examiner noted that it was a standalone entity and not caused by or a result of the leg discrepancy. He added that he was in disagreement with previous health care providers that indicated that his back condition was secondary to the leg length discrepancy. A December 2005 VA x-ray study of the lumbar spine was noted to be normal. A January 2006 x-ray study of the pelvis reflected an impression that the left leg was approximately 7 to 8 millimeters longer than the right leg. During the March 2006 hearing, the Veteran testified that his leg length discrepancy put pressure on the sciatic nerve and notch at the sciatic foramen, causing back pain. He reported that his shoe insert caused additional problems with his back and that his service treatment records included an erroneous report that his right leg was longer, when was actually shorter than the left. He contended that, by wearing an insert in the wrong foot, it caused severe back pain. The Veteran also believed that the VA examination worsened his symptoms. The Veteran's cousin testified that the Veteran used to play sports with him before service, but could not do so after his service. An April 2006 VA outpatient treatment report noted an assessment of left leg discrepancy with secondary back spasms. A June 2007 physical therapy discharge report reflected that the Veteran reported that he was diagnosed in 2001 with a right leg length discrepancy, but was mistakenly given orthotics for the left lower extremity to correct for 8 months before he had an examination and found that he was using orthotics on the wrong foot. He reported constant low back pain. The Veteran was issued a TENS unit and cane. A June 2007 EMG of the right lower extremity yielded normal findings with no electrodiagnostic evidence of acute lumbar or sacral radiculopathy involving the right lower extremity. A September 2007 VA outpatient treatment report noted that the Veteran reported having chronic low back pain since 2001. It was noted that the Veteran had a leg-length discrepancy and asserted that he had a lift put in the wrong shoe for about 8 months, was put through rigorous physical therapy, and had developed increased low back pain. He currently wore correct lift and arch supports. An August 2008 x-ray report of the lumbar spine noted normal findings. On VA examination in September 2008, the Veteran reported having a history of chronic low back pain. He reported having a remote history of low back strain while working at a restaurant prior to service. A scanogram performed in 2002 showed a 1.8 centimeter leg length discrepancy. After an examination and x-ray studies, the examiner diagnosed mechanical low back lumbago and opined that the Veteran's low back pain was less likely as not aggravated by his leg length discrepancy. The examiner noted that the Veteran's mechanical low back pain could be result of the original back strain from the restaurant injury in 2000. Also, the examiner noted that a scanogram was not the most accurate way of measuring a leg length discrepancy, and a CT scan was more accurate-therefore he was not sure of the exact discrepancy. The examiner also noted that a leg length discrepancy of 1 to 2 centimeters should not result in significant back pain. Therefore, he determined that it was less likely than not that the Veteran's current back pain was the result of his current leg length discrepancy. An April 2009 VA outpatient treatment report noted that the Veteran reported having a history of back pain since the military. A July 2009 private treatment report noted that the Veteran presented with complaints of back pain as well as hip and ankle pain. The examiner noted an essentially normal MRI of the lumbar spine. The examiner noted that the Veteran's chronic hip, back, and ankle symptoms were in excess of what he could explain based up the current workup. He emphasized that the MRI was negative, and noted that he did not have any studies to diagnose a leg length inequality or appear to have one clinically. On VA examination in September 2009, the Veteran stated that he developed low back pain due to wearing orthotics in the wrong shoe. He had a motor vehicle accident a few weeks prior to examination, and this exacerbated his back pain. It was also indicated that the Veteran saw a civilian orthopedist in July 2009, and an MRI at that time was normal. Also, it was noted clinically that the Veteran did not appear to have a leg length discrepancy. After obtaining a history from the Veteran, review of the claims file and physical examination, the examiner diagnosed lumbago. The examiner determined that it was less likely than not that the Veteran's back pain was related to service. He noted that the back pain could be related to his injury in 2000 or to the recent motor vehicle accident. The examiner also noted that the recent CT scan did not reflect a leg length discrepancy. A March 2010 VA outpatient treatment report noted a history of having an initial back injury 6 years earlier that was exacerbated by a September 2009 motor vehicle accident. He was very upset with the majority of VA doctors because they did not believe that his military diagnosis was the cause of his current problems. He noted that a military chiropractor diagnosed him over 6 years earlier with back problems secondary to a leg length discrepancy. He reported failing a post office physical 6 years ago because the doctor told him he could not do anything that required standing or that stressed his back. On VA examination in September 2010, the examiner noted the Veteran's pertinent medical history and reviewed the claims file. The examiner indicated that the Veteran had a one centimeter right lower extremity leg length discrepancy, a normal anatomic condition. The examiner indicated that a one centimeter discrepancy was considered a normal anatomic development variation that did not require lifts or treatment. He also noted that in-service activities would not aggravate this condition. The examiner further determined that the Veteran's lumbosacral strain with moderate mechanical back pain was not caused by, a result of, or permanently aggravated by the service-connected leg length discrepancy. Rather, the examiner determined that the onset of chronic lumbosacral strain rested with the pre-service injury pattern and was not reinjured in service or aggravated permanently by wearing a shoe lift on the wrong side. The examiner also noted that the Veteran's current examination demonstrated symptom magnification that was disproportionate to clinical findings. Moreover, the examiner noted that, during the examination, the Veteran tried to broker the medical decision-making process as to the chronic low back pain causation being related to his shoe lift by quoting medical literature and threatening litigation. The examiner also noted that the Veteran told him that his medical license would be in jeopardy. He added that a review of the Veteran's medical chart revealed many incidents of complaints of inadequate examinations, injuries associated with examination or x-ray positioning-all of which the examiner found to be manifestations of the Veteran's symptom magnification. A November 2011 report from private physician Dr. M. noted that, while he did not treat the Veteran for his pre-service work injury, with workers' compensation injuries, if there was a permanent injury and permanent impairment, that would have been dictated. He deferred to the workers' compensation doctor as to whether the pre-service work injury was of any significance. A February 2013 report from a private chiropractor related the Veteran's relevant medical history. She noted that she reviewed all of the Veteran's medical records and constructed a timeline of the Veteran's history related to his back complaints and treatment. After an examination, she diagnosed low back pain and a right leg length deficiency. In her opinion, the Veteran's low back condition might be causally related to the fact that he was allowed to enter the military and go through intense training with an extreme leg length deficiency, and furthermore was instructed to wear heel lifts in the wrong shoe for over 8 months. She found it possible that having such an extreme leg length discrepancy from that mishap created increased instability in the lumbar spine and pelvis, and a chronic low back condition. The private physician noted that, while there was a question as to whether the Veteran's low back condition stemmed from disc degeneration or a disc bulge that he had prior to entering the military, there was no disc degenerative apparent from films from 2000 to the present. She found that the Veteran was apparently symptom free and allowed to return to work and enter the military, and developed his low back condition while in service. Law and Analysis The Veteran believes that this low disability stems from his service or from his leg length discrepancy. He alleges that he was prescribed orthotics for the wrong extremity during service, and this led to the development of low back pain. 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, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to the current appeal, this list includes arthritis. See 38 C.F.R. § 3.309(a). 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). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Under 38 C.F.R. § 3.310, service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Additional laws and regulations apply, however, when there is evidence that a disability preexisted service. Every Veteran is presumed to have been in sound condition at entry into service, except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry 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). Determination of the existence of a preexisting condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion, see Miller v. West, 11 Vet. App. 345, 348 (1998), or a later medical opinion based upon statements made by the Veteran about the pre-service history of the condition. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000). The burden is on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004). An injury or disease that has been determined to be preexisting will then be presumed to have been aggravated by service where there is an increase in the severity of the disability during service. The burden to show no aggravation of a pre-existing disease or disorder during service lies with the government. Cotant v. Principi, 17 Vet. App. 117, 131 (2003). VA must show by clear and unmistakable evidence that the pre-existing disease or disorder was not aggravated during service and the claimant is not required to show that the disease or injury increased in severity during service. See VAOPGCPREC. 3-03 (July 16, 2003) (69 Fed. Reg. 29178 (2004). The presumption of aggravation is rebutted where there is a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In deciding an aggravation claim, after having determined the presence of a preexisting disability, the Board must determine whether there has been any measurable worsening of the disability during service and whether this worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary or intermittent flare-ups of the preexisting condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). 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 C.F.R. § 3.306(b). Here, the Board finds that the presumption of soundness at entry has been rebutted in that the Veteran is clearly and unmistakably found to have entered active service with lumbosacral strain. While a low back disorder was not noted on the Veteran's entrance examination, other evidence establishes the preexisting nature of the disorder. First, while pre-service treatment records reflect that the Veteran was cleared to return to work, he reported continued intermittent back pain. In addition, while the Veteran did not endorse back pain at entrance, within a few months after entrance into service, he indicated that his back had never felt "great" since the initial injury. In August 2002, the Veteran complained of low back pain with an onset 3 years earlier and was assessed with recurrent lumbosacral strain. On VA examination in October 2005, the examiner opined that the Veteran's degenerative disc disease with mechanical low back pain predated his entry date to the service. The September 2010 VA examiner likewise determined that the onset of chronic lumbosacral strain rested with the pre-service injury pattern. Based on all of this evidence, the Board finds the Veteran entered service with a preexisting low back disorder manifested by lumbosacral strain. Having determined that the Veteran entered service with lumbosacral strain in 2001, the next step involves examining whether there has been any measurable worsening of the disability during service and whether this worsening constitutes an increase in disability. Browder, 5 Vet. App. at 271; Hensley, 5 Vet. App. at 163. If there is an increase in severity, there is a rebuttable presumption of aggravation. 38 U.S.C.A. § 1153. The service treatment records reflect that the Veteran sought frequent treatment for his low back complaints and was placed on a limited duty due to his back pain. The Veteran repeatedly complained of increased back pain secondary to his leg length discrepancy and back pain that had not resolved after treatment and limited duty. He was also discharged from his active duty, in part due to this condition. The Board finds this evidence supports an increase in severity of the Veteran's low back disorder during service. Having found an increase in severity during service, it is presumed that the low back disorder was aggravated by service. 38 U.S.C.A. § 1153. While this presumption is rebuttable, the Board here cannot find that the evidence "clearly and unmistakably" establishes that aggravation did not occur. In this regard, the Board notes that there are competing opinions of record as to whether the Veteran's preexisting low back disorder was aggravated in service. While the October 2005 and September 2010 VA examiners determined that the Veteran's low back disorder was not reinjured in service or aggravated permanently by wearing a shoe lift on the wrong side, various treatment providers and the February 2013 chiropractor have indicated that the Veteran's low back disorder was aggravated in service due to his duties and increased strain due to leg length discrepancy. When weighing the opinions of the VA examiner against the other evidence of record, the Board finds the evidence to be in relative equipoise. On this record, the Board cannot find that the evidence "clearly and unmistakably" establishes that aggravation did not occur. Hence, on this record, it is shown that the lumbosacral strain as likely as not had its clinical onset during service. Accordingly, service connection for lumbosacral strain is warranted in this case. . ORDER Service connection for lumbosacral strain is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs