Citation Nr: 1321476 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 05-21 352A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for traumatic arthritis of the cervical and thoracic spine. 2. Entitlement to service connection for traumatic arthritis of both shoulders. 3. Entitlement to service connection for traumatic arthritis of the lumbosacral spine. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his niece ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from December 1950 to February 1954. As was explained in December 2009 and January 2011 Board remands, the appeal in the matters of service connection for traumatic arthritis of the cervical and thoracic spine and both shoulders is from a December 1969 rating decision (as the Veteran was not properly notified of that decision); the appeal in the matter of service connection for lumbosacral spine is from an August 2004 rating decision, and the appeal in the matter of entitlement to a TDIU rating is from a January 2008 rating. In October 2009, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In May 2012, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). In July 2012, while the Veteran's claims were pending before the Board, the RO received notice that he died in June 2012. The information was forwarded to the Board (and received after the Board had issued a decision in the matter). Because the Veteran died prior to the issuance of the decision, in accordance with established appellate practices, by a November 2012 decision, the Board vacated its July 2012 decision and remand addressing the issues of service connection for traumatic arthritis of the cervical, thoracic and lumbosacral spine and both shoulders and entitlement to TDIU and dismissed the appeals in these matters without prejudice to the appellant. In April 2013, VA received the appellant's request, in her capacity as the surviving spouse, to be substituted as the claimant/appellant in these matters. See 38 U.S.C.A. § 5121A. A June 2013 decisional letter granted the request for substitution. 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). The issue of entitlement to a TDIU rating is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. It is reasonably shown that the Veteran's arthritis of the cervical and thoracic spine is causally related to trauma in service. 2. It is reasonably shown that the Veteran's arthritis of both shoulders is causally related to trauma in service. 3. It is reasonably shown that the Veteran's lumbosacral spine arthritis is causally related to trauma in service. CONCLUSIONS OF LAW 1. Service connection for traumatic arthritis of the cervical and thoracic spine is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). 2. Service connection for traumatic arthritis of both shoulders is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). 3. Service connection for traumatic arthritis of the lumbosacral spine is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Inasmuch as the benefits sought are being granted, there is no reason to belabor the impact of the VCAA on these matters; any notice defect or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. The Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) have both been reviewed. At present there are no additional documents pertinent to this appeal in Virtual VA. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the current disability and disease or injury in service. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's DD Form 214 shows that he received a Combat Infantryman Badge (CIB) based on his service during the Korean conflict. His service treatment records (STRs) reflect that his spine and musculoskeletal structure were normal on enlistment in December 1950. An October 1953 treatment report notes that he complained of a three day history of low back pain and had been experiencing recurrent low back pain since he was thrown from a tank in Korea in 1951. A November 1953 treatment report notes that he complained of low back pain which had its onset on the prior day. The Veteran's January 1954 separation examination report shows that his spine and musculoskeletal structure were normal on clinical evaluation; it was also noted that X-rays revealed a fairly marked left dorsal scoliosis. On October 1969 VA orthopedic examination the Veteran complained of constant pain in the posterior neck region and in the area of the thoracic spine for the past two years. He reported that he had experienced aching in these areas since 1951 when he was thrown from a tank that was struck by a mortar round. The aching was intermittent at first, but constant as related to the past two years. The Veteran also complained of aching in the supraspinous region of both scapulae. The diagnosis was arthritis of the cervical and thoracic spine as well as the shoulders. Private treatment records include a February 1987 X-ray examination report which notes a developmental anomaly of the upper thoracic vertebrae, possibly due to hemivertebra. The impression was suspected developmental anomaly of the upper thoracic vertebrae. February 2002 to February 2010 VA treatment records show ongoing complaints of back and shoulder pain. On February 2010 VA joints examination the diagnosis was arthritis of both shoulders; the examiner concluded that it is "more likely than not this is a natural occuring phenomenon not related to an injury in service. He has arthritis in multiple areas." On February 2010 examination of the spine the diagnois was scoliosis, arthritis, dorsal lumbar spine and the conclusion was "no evidence that this scoliosis preexisted in service, there is no evidence it was aggravated in service, and the arthritis more likely than not is a natural occurring phenomenon not related to any injury." In January 2011, the Board found that the [February 2010] opinion was inadequate, and remanded the matter for a supplemental opinion. In February 2011, the Veteran was afforded another VA examination and, in an addendum opinion, the examiner stated that the Veteran's "scoliosis and degenerative arthritis of the cervical, dorsal and lumbar spine is more likely than not related to his natural age. Progression is not likely related to one event way back 65 years ago. Osteoarthritis of the spine is not related to arthritis in any other joints nor can be aggravated by same." In May 2012 the Board (finding that the February 2011 addendum opinion was nonresponsive to the specific questions posed) requested an advisory medical opinion from a VHA expert in this matter. A VA orthopedic spine surgeon reviewed the claims file and, responding to the question of whether scoliosis a congenital or developmental defect that cannot increase in severity or whether it can be acquired, explained: Scoliosis is often idiopathic and can go undiagnosed, unless X-rays are taken. Other causes of scoliosis, in a normal spine, include trauma or muscle spasm due to strain of the muscles in the back. X-rays of this veteran's cervical, thoracic, and lumbar spine show no evidence of fracture that would cause scoliosis. The X-ray report does not give good detail as to what sort of scoliotic deformity was visualized. X-rays later on in his life, of the thoracolumbar spine, were described as minimal degenerative changes and no mention of a significant scoliotic deformity. The X-rays in 1969 mention sclerosis but no scoliosis. Sclerosis is an early sign of degenerative changes. It is likely that the scoliosis deformity noted on X-ray, in 1954, was related to muscle spasm from chronic muscle strain. The veteran clearly has a history and documentation of injury in the service that would cause such muscle spasm and low back strain. It would be very difficult to determine, at this point, if he had a congenital scoliosis, unless the actual X-rays from 1954 and 1969 were available to compare to his more recent xrays. The best opinion I can give, based on the data given, is that this veteran did suffer traumatic injury to his low back while he was in the military, as described in his history. This caused a muscle strain causing [sic] thoracolumbar scoliosis. That scoliosis might have been based on muscle spasm and did not cause a significant deformity, as it was not documented in later X-rays. He also went on to have continued pain with the development of degenerative changes across the thoracolumbar spine. It is therefore, as least as likely as not that his later development of arthritis and chronic pain with strain across the thoracolumbar spine is related to the injury in service. The expert opined that it is at least as likely as not that the Veteran's arthritis of the cervical, thoracic and lumbosacral spine and shoulders is related to his service, to include the documented trauma of being thrown from the tank, and provided the following explanation of rationale: The veteran has clear documentation in his service records of injury, in 1951, with recurring low back pain. When he was seen in 1969 for his compensation and pension exam, he complained of continued pain across his neck, thoracic, lumbar spine and shoulders. He was given a diagnosis of arthritis at that time. ... He continued to have symptoms throughout his lifetime when he re-applied for service connection later in life. The Veteran's STRs show that he complained of recurrent low back pain in October 1953, upon being thrown from a tank in Korea in 1951. It is also well-documented that he has arthritis of the cervical, thoracic and lumbar spine as well as the shoulders. The remaining critical factor he must meet to establish service connection for the claimed disabilities is a nexus between his current disabilities of the cervical, thoracic and lumbar spine and both shoulders and the injury in service. The May 2012 VHA expert opined that it is at least as likely as not that the Veteran's arthritis of the cervical, thoracic and lumbosacral spine and shoulders is related to his service, to include the documented trauma of being thrown from a tank. The Board finds no reason to question the opinion-provider's expertise in the matter. Because his opinion is accompanied by a detailed explanation of rationale (and the opinions previously of record are not), the Board finds the opinion the most probative evidence in the matter, and persuasive. Accordingly, this opinion constitutes competent evidence of a nexus between the claimed disabilities and the Veteran's service/injuries therein. All of the requirements for establishing service connection are met. Service connection for arthritis of the cervical, thoracic and lumbosacral spine and shoulders is warranted. ORDER Service connection for cervical and thoracic spine traumatic arthritis is granted. Service connection for traumatic arthritis of both shoulders is granted. Service connection for lumbosacral spine traumatic arthritis is granted. REMAND The Board's grant of service connection for the Veteran's arthritis of the cervical, thoracic and lumbosacral spine and shoulders impacts on his claim for a TDIU rating. The matter of entitlement to such rating is inextricably intertwined with the RO's implementation of the Board's grants of service connection, and consideration of the appeal seeking a TDIU rating must be deferred pending such implementation. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) The RO should arrange for any additional development deemed necessary (to include obtaining a medical advisory opinion to ascertain the combined impact the Veteran's service-connected disabilities had on his employability); implement the Board's grant of service connection for his arthritis of the cervical, thoracic and lumbosacral spine and both shoulders; and then re-adjudicate the claim for TDIU. If it remains denied, the RO should issue an appropriate supplemental SOC and afford the appellant and her representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs