Citation Nr: 1325725 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 07-04 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a low back disorder, identified as grade I retrolisthesis at L5-S1. 2. Entitlement to service connection for a low back disorder, identified as degenerative changes in the lumbar spine. 3. Entitlement to service connection for a low back disorder, identified as spondylolisthesis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from March 1979 to March 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which reopened a claim for service connection for a low back disorder but denied service connection on the merits. In an October 2010 decision, the Board reopened the claim and denied service connection for a low back disorder on the merits. The Veteran appealed that portion of the decision relevant to the denial of service connection to the U.S. Court of Appeals for Veterans Claims (Court). In August 2011, the Court vacated the portion of the decision that denied service connection for a low back disorder and remanded the claim for further development in accordance with the instructions in a Joint Motion for Remand. The Board remanded the claim in January 2012. It thereafter sought an expert medical opinion on the matter in January 2013. The claim has been returned to the Board for appellate review. The record contains various diagnoses of low back disorders. The Board has seen fit to recharacterize the matter on appeal from one issue generally involving the low back, to three issues specifically addressing the three diagnoses. FINDINGS OF FACT 1. The Veteran was diagnosed in service with grade I retrolisthesis at L5-S1 and is currently diagnosed with grade I retrolisthesis. 2. There is no probative evidence that the post-service degenerative changes in the lumbar spine were manifest within a year of the Veteran's discharge from service or that they are etiologically related to service. 3. Spondylolisthesis is considered a developmental or congenital anomaly and not a disability for which service connection may be granted. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder, diagnosed as grade I retrolisthesis, have been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for degenerative changes in the lumbar spine have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. The criteria for service connection for spondylolisthesis have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that VA's duty to notify was satisfied by letters sent to the Veteran in February 2006 and March 2006. The letters addressed all of the notice elements and were sent prior to the initial unfavorable decision by the AOJ in July 2006. VA's duty to assist was also met in this case. The service treatment records are in the claims file. All pertinent VA and private treatment records have been obtained and associated with the file. A VA examination with respect to the issue on appeal was obtained in February 2012 and an expert medical opinion was sought in January 2013. 38 C.F.R. § 3.159(c) (4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions obtained in this case in February 2012 and March 2013 are adequate, as they are predicated on a full reading of the private and VA medical records in the Veteran's claims file. They also consider all of the pertinent evidence of record and the statements of the appellant, and the examiners provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1131. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). For certain chronic disorders, such as arthritis, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Veteran, who served as a U.S. Air Force aircraft mechanic, contends that her low back disorder first manifested in service or is related to events in service. Service treatment records showed that the Veteran sought treatment in August 1979 for low back pain after lifting equipment during aircraft maintenance training three weeks earlier. The examiner diagnosed back pain of muscle origin and advised exercise and the application of local heat. Two weeks later, the Veteran again sought treatment for continued low back pain, and a physician diagnosed muscle pain and prescribed oral medication. In early September 1979, a physician noted the Veteran's report of intermittent back pain. The physician noted no muscle spasms and a full range of motion, but x-rays showed grade I retrolisthesis at L5-S1. The physician advised continued exercise and conservative modalities and the Veteran was placed on light duty with no heavy lifting for one week. Service treatment records showed no further treatment for back pain. In a February 1983 discharge physical examination, the Veteran denied any history of recurrent back pain and the examining physician noted no spinal abnormalities. From May 1990 to August 1990, private records showed that the Veteran sought treatment for low back pain and muscle spasms. In July 1990, a clinician diagnosed retrolisthesis at L5-S1 but did not refer to any concurrent imaging studies or a review of the service treatment records. In August 1990, the examiner noted the Veteran's reports of improvement with chiropractic treatment. In December 1998, a VA physician's assistant (PA) noted that the Veteran had been treated for low back pain the previous October after a fall. The PA noted that x-rays were obtained at the time but did not comment on the results. The PA noted mild paraspinal spasms but no local tenderness and continued a prescription for an anti-inflammatory medication. In August 2002, the Veteran was prescribed an exercise program to assist in weight loss and address symptoms of right hip pain. There were no references to low back pain at the time, and subsequent outpatient VA records through March 2006 are silent for low back pain symptoms or treatment. In March 2006, the Veteran sought treatment following a fall. A physician noted the Veteran's reports of left arm, hand, knee, foot, and low back pain. On examination, the physician noted tenseness of the lumbar paraspinous muscles but no tenderness to palpation of the spine. An x-ray showed mild degenerative changes at three levels. In May 2006, a VA physician noted that the claims file was not available for review but noted the Veteran's report of treatment for one episode of low back pain in service after rising from under an aircraft. The Veteran also reported recurrent treatment for muscle spasms and the recent treatment following a fall. On examination, the physician noted limitation of motion with the possibility of a lack of full effort due to the recent injury. There was tenderness over the paraspinal region but no muscle spasms or strength and sensory deficits. The physician diagnosed muscle strain and deferred any opinion until after a review of the claims file. In a June 2006 addendum, the physician noted a review of the claims file including the records of treatment in 1979. The examiner concluded that the episode was an acute strain that resolved because there was no record of further symptoms or treatment for the remainder of service. The examiner advised another examination after the Veteran recovered from the immediate residuals of the fall. An October 2010 Joint Motion for Remand determined that the May 2006 examination report and June 2006 addendum opinion were inadequate because the examiner did not reference the September 1979 X-ray evidence or July 1990 diagnosis of retrolisthesis at L5-S1. The Board remanded the claim in January 2012 for another VA examination. That examination was conducted in February 2012, at which time the Veteran's claims folder was available and reviewed. The VA examiner acknowledged that service treatment records demonstrated that the Veteran was treated for low back pain in 1979, at which time she was diagnosed with retrolisthesis of L5 and S1. The examiner also noted that recent medical records demonstrated degenerative joint disease at three levels of her lumbar spine in 2006. The Veteran reported low back pain for several years, which she related to military service. She asserted that she was working underneath a plane on one occasion during service and had some low back pain afterwards. The Veteran denied specific injury. She reported the low back pain got better over time but felt her current issues were related to that. She denied having any problems before service. Following physical examination, the Veteran was diagnosed with degenerative changes in the lumbar spine. The examiner noted the absence of significant injury during service and the fact that the Veteran only had one in-service issue with mild back ache after working under a plane. It was the examiner's opinion that it would be difficult to find her current degenerative changes of the lumbar spine are related to a one time incident of low back pain while in service. The examiner also noted the Veteran's discharge physical examination that showed a normal lumbar spine and her denial of any back pain. The Board sought an expert medical opinion in January 2013, since the February 2012 VA examiner also did not discuss the medical significance, if any, of the 1979 in-service x-ray results. The expert medical opinion was provided in March 2013 by Dr. M.E.M., Chief of Neurosurgery at the North Texas VA Medical Center. Dr. M. reported that the Veteran has a congenital anomaly resulting in a displacement of the fifth lumbar vertebral body forward on the sacrum. The anomaly itself, a spondylolisthesis, is required to have the abnormal movement, her grade I retrolisthesis. However, this did not come to light until she sought treatment while on active duty for back pain after lifting heavy equipment during aircraft maintenance. The Veteran apparently recovered from this and at her military discharge examination, she denied a history of recurrent back pain. However, seventeen years later she sought treatment for back pain and muscle spasms and she again improved with minimal care. She has had medical care off and on for back pain and other x-rays demonstrating the retrolisthesis and more recently mild degenerative changes. In answer to the question posed by the Board as to whether it is at least as likely as not that any currently diagnosed low back disability had its clinical onset during service or is related to the events, treatment, and diagnosis in service, Dr. M. stated that the Veteran has a grade I retrolisthesis that was identified while on active duty. Dr. M. indicated that it is known that such anomalies are associated with recurrent back pain that may increase in severity over time, be associated with recurrent back pain that may increase in severity over time, be associated with pain intermittently, result in pain from relatively minor activity but can often be successfully treated with medications, physical therapy and other non-invasive means only to have the pain recur at a later time. It was Dr. M's opinion that the Veteran's current situation of recurrent back pain and muscle spasm is more likely than not to be related to her retrolisthesis that was first diagnosed while on active duty. Her treatment while in service seems appropriate as does the diagnosis she received. The preponderance of the evidence of record supports the Veteran's claim for service connection for low back disorder, diagnosed as grade I retrolisthesis. This is so because she was diagnosed with grade I retrolisthesis at L5-S1 during service in September 1979, the medical expert provided a current diagnosis of grade I retrolisthesis, which was noted to have been identified while on active duty, and there is no evidence that the grade I retrolisthesis noted in the March 2013 expert medical opinion is due to an event that occurred after the Veteran's discharge from service. For these reasons, the Board resolves reasonable doubt in the Veteran's favor by finding that service connection for a low back disorder, specifically the diagnosed grade I retrolisthesis, is warranted. See 38 C.F.R. § 3.303(b). Service connection is not warranted, however, for the degenerative changes noted in the Veteran's lumbar spine. The September 1979 in-service x-ray did not show any degenerative changes in the lumbar spine and it was not until March 2006 that x-ray evidence of degenerative changes in the lumbar spine were noted. In addition, the February 2012 VA examiner was of the opinion that it would be difficult to find the Veteran's current degenerative changes of the lumbar spine related to a one time incident of low back pain while in service, while also noting that the Veteran denied any back pain at the time of her discharge physical examination, which also showed a normal lumbar spine. In the absence of evidence establishing an etiological relationship between the in-service complaints related to the Veteran's back and the current diagnosis of degenerative changes in the lumbar spine, or any evidence of arthritis in the Veteran's lumbar spine within one year of her March 1983 discharge from service, service connection is not warranted. 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection is also not warranted for the spondylolisthesis noted in the March 2013 expert medical opinion. The expert clearly noted that spondylolisthesis is a congenital anomaly that results in a displacement of the fifth lumbar vertebral body forward on the sacrum. Congenital or development defects are not disabilities for which service connection may be granted. 38 C.F.R. § 3.303(c) (2012). ORDER Service connection for a low back disorder, diagnosed as grade I retrolisthesis, is granted. Service connection for degenerative changes in the lumbar spine is denied. Service connection for spondylolisthesis is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs