Citation Nr: 1329513 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 09-38 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for degenerative disc disease and post-operative fusion of the lumbar spine. 2. Entitlement to service connection for degenerative disc disease and fractured thoracic spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from August 1981 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A video conference hearing was held before the undersigned Veterans Law Judge in September 2011. The transcript is of record. This case was before the Board in January 2012 when it was referred to the Veterans Health Administration (VHA) for a medical expert opinion. An opinion was obtained in February 2012. The Board requested clarification of the medical expert opinion in March 2012 and in July 2012 an addendum to the February 2012 VHA medical expert opinion was rendered. The Board requested further clarification in August 2012 and made another request for a VHA medical expert opinion in April 2013. A VHA medical expert opinion was rendered in June 2013. The Veteran and his representative were sent copies of these medical expert opinions in July 2013. In addition to the issues listed above, the Veteran filed a notice of disagreement with the issue of entitlement to an evaluation in excess of 10 percent disabling for tinnitus, entitlement to a compensable evaluation for hearing loss, entitlement to service connection for post-operative anterior cervical fusion for cervical disc disease, entitlement to service connection for a bilateral leg condition, entitlement to service connection for a bilateral ankle condition, and entitlement to service connection for osteoarthritis. However, the Veteran specifically limited his appeal to the issues regarding his lumbar spine and thoracic spine in his Substantive Appeal on VA Form 9 dated in September 2009. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, the competent and probative medical evidence of record establishes that the Veteran's degenerative disc disease of the lumbar spine is related to his active service. 2. Affording the Veteran the benefit of the doubt, the competent and probative medical evidence of record establishes that the Veteran's degenerative disc disease of the thoracic spine is related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative disc disease of the lumbar spine are met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for service connection for degenerative disc disease of the thoracic spine are met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the Veteran of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the Veteran's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Given the fully favorable decision, discussed below, the Board finds that any issue with regard to the timing or content of the notice provided to the Veteran is moot or represents harmless error. The Veteran seeks entitlement to service connection for a lumbar spine disability and thoracic spine disability. He contends that his current spine disabilities are a result of active service and, in essence, advances two theories as to how the conditions developed. He reports severely spraining his left ankle during basic training, which was casted for several weeks. He contends that wearing the cast altered his gait and resulted in lower back problems. The Veteran also reports that during cross training several months after this incident, he was manually palletizing canned pre-packed munitions weighing 100 to 200 pounds when his thoracic spine region (between his shoulder blades) was injured. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran's service treatment records contain many references to treatment related to his back. The service treatment records also corroborate that the Veteran injured his ankle in August 1981 and was placed in a walking cast. A September 1981 record reveals that the Veteran was assessed with increased back pain by cast worn; a December 1983 record reveals that the Veteran had around a one year history of back/neck muscle injury secondary to lifting heavy object; the Veteran was placed on physical profile on several occasions due to, among other things, low back pain; and a Medical Evaluation Board was recommended in February 1984 due to a diagnosis of myofascial back pain syndrome. The post-service medical evidence of record reveals that when seeking treatment from several medical providers related to his back, the Veteran has consistently reported a long history of back problems dating back to the early 1980s. A July 1988 record reveals that the Veteran was seen with complaint involving his right shoulder between the blade and spine, at which time he reported a past history involving his right shoulder in the military. The Veteran apparently fell off a ladder in October 2003 (after service), which resulted in a fracture of his spine. There are no records related to this incident but there are imaging reports of the Veteran's spine dated after the alleged incident. In November 2004, the Veteran underwent a spinal fusion (anterior approach for L5-S1 spinal fusion) due to severe degenerative disc disease. He also underwent anterior lumbar interbody arthrodesis, L5-S1; implantation of Danek LT cages, 16 x 23 mm, at L5-S1; and placement of InFUSE bone morphogenic protein within the interbody cages. An April 2005 private treatment record reveals that the Veteran was wondering whether his problems were related to an injury back in 1982. The examining physician noted that the Veteran had brought his service treatment records and that he apparently had a bad sprained ankle, was placed in a cast, and started to develop some back pain, which, at that time, was attributed both to scoliosis and/or myofascial strains. The Veteran noted that it had never improved and had gotten progressively worse, and questioned whether his current problem, which included spinal stenosis, could be related to the injury. The examining physician indicated that it was "certainly possible" an old spinal injury could develop into spinal stenosis. The Veteran underwent a VA spine examination in May 2007, at which time the examiner noted that service treatment records document mechanical sprain and strain, that over the years the Veteran has had persistent problems with his back, that he had a fall with resulting fractures that aggravated the spine, and that he now had a natural occurring degenerative disc disease in the cervical, dorsal and lumbar spine, for which he had undergone operations. Following physical examination (and discussion of x-ray findings), the Veteran was diagnosed, in pertinent part, with degenerative disc disease and fractured thoracic spine; and degenerative disc disease and postop fusion lumbar spine. It was the examiner's opinion that it is not likely his symptoms are related to the sprain and strains in service, but rather a natural occurring arthritis that has also been aggravated by a ladder fall in around 2003 with fractures to the thoracic spine. The May 2007 x-ray of the lumbosacral spine revealed no fracture or dislocation; no destructive bony changes; minimal degenerative arthritis changes; and metallic plates at the level with the disc space between L5 and S1. The May 2007 x-ray of the thoracic spine revealed no fracture or dislocation; no destructive bony changes; and minimal degenerative arthritis changes. The impression for both was minimal degenerative arthritic changes. A VA medical expert opinion was obtained in February 2012. The medical expert noted that the incidence of ankle sprains in the U.S. armed forces is five times that of the civilian population according to a National Institutes of Health (NIH) study. During the period of the study over 400,000 service members sustained ankle sprains that were at least severe enough to warrant reporting. The expert reported that although all of these 400,000 plus ankle sprains were not to the severity of the Veteran, some certainly were and some certainly were worse. Following the logic of the assertion of the Veteran, the incidence of reported lumbar or thoracic associated back pain would be significantly higher. The expert opined that he did not find that in any reasonable avenue of logic can it be assumed that the Veteran's current lumbar and thoracic symptoms can be associated with the altered gait from wearing a walking cast. The expert continued to note that in his professional experience, an unusual gait or altered gait exacerbates an underlying back ailment and is not the etiology of the back disorder when discussing a short term transient altered gait such as the Veteran's case. The Board noted in its request for clarification in March 2012 that the February 2012 medical expert opinion only discussed the effect of the use of the walking cast on the Veteran's back and did not address any lifting injury or the relationship of the Veteran's history of back complaints before an October 2003 injury when he fell from a ladder. In July 2012 the medical expert provided clarification of the February 2012 opinion. After a discussion of the Board's original request for a medical opinion and the prior opinion provided by the medical expert, the medical expert stated: Simply stated, without the added justification of medical publications and applied logic in written form, it is my opinion that it is not likely that any currently diagnosed thoracic and lumbar spine disorder had its clinical onset during active service or is related to any in-service disease, event, or injury, to include as a result of an ankle sprain requiring a walking cast. (Emphasis omitted.) The Board noted in August 2012 that both the February 2012 and July 2012 medical expert opinions offered a negative opinion as to a possible relationship between the Veteran's current back complaints and the effect of the use of a walking cast during service. The rationale appeared to be based on general assumptions about the incidences of ankle sprains and subsequent reports of associated back pain; rather than the details of the Veteran's case. The Board continued to note that unfortunately, neither opinion addressed the effect of the documented lifting injury in service. After another request for a VA medical expert opinion was prepared, a different medical expert provided an opinion in June 2013. The medical expert noted that: Although it is somewhat difficult to evaluate this case without general assumption. Assuming that the [Veteran's] description about his symptoms and incidence the [Veteran] suffered are faithful representation of the fact. . . . It is at least as likely as not (50 percent or greater probability) that the current thoracic and lumbar spine disorder had its clinical onset during his active service or is related to his in-service disease, event or injury. The medical expert noted that the Veteran used a ankle cast for several weeks. The expert opined that "it is possible (with 50 percent or greater probability) in this particular case that this could change his gait and eventually cause his spine disease." The medical expert stated that "[t]he likely effect if the in-service lifting injury - I think that it is also possible (with 50 percent or greater probability) that the in-service injury caused the myofascial pain syndrome." The medical expert reported that "the May 2007 VA examination finding that the Veteran's current condition was a natural occurring arthritis that had also been aggravated by the post-service fall with fracture - I think that the Veteran's current condition may be results of in-service injuries with 50 percent or greater probability in this particular case." Entitlement to service connection for degenerative disc disease of the lumbar spine and degenerative disc disease of the thoracic spine is warranted. Service treatment records reveal that the Veteran was treated for complaints of back pain and spasm. These records also reveal that the Veteran injured his ankle and was placed in a walking cast. The records reveal that the Veteran had back and neck muscle injury secondary to lifting a heavy object. Post-service records reveal consistent complaint of back problems dating back to the early 1980s. A VA examiner in May 2007 and VA medical experts in February 2012 and July 2012 rendered the opinions that the Veteran's back problems were not related to the Veteran's sprains and strains in service and were not related to the Veteran's wearing of a walking cast but were a naturally occurring arthritis that had been aggravated by a ladder fall in 2003. The VA medical expert opinions dated February 2012 and July 2012 were found to be insufficient because they did not contemplate the Veteran's in-service lifting injury. A private provider noted that it was certainly possible an old spinal injury could develop into spinal stenosis. In addition, a VA medical expert in June 2013 rendered the opinion that it is at least as likely as not (50 percent or greater probability) that the current thoracic and lumbar spine disorder had its clinical onset during his active service or is related to his in-service disease, event or injury. As the evidence associating the Veteran's degenerative disc disease of the lumbar spine and degenerative disc disease of the thoracic spine with the Veteran's in-service injury is at least in equipoise, service connection is granted for degenerative disc disease of the lumbar spine and degenerative disc disease of the thoracic spine. ORDER Service connection for degenerative disc disease of the lumbar spine is granted. Service connection for degenerative disc disease is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs