Citation Nr: 1338516 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-23 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for a disability of the thoracolumbar spine, to include residuals of an osteochondroma and lumbar degenerative disc disease (DDD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In November 2010, the Veteran presented sworn testimony during a personal hearing in Salt Lake City, Utah, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In an October 2011 Board action, the claim was remanded for further evidentiary development. As will be discussed below, review of the record reflects substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denial in a July 2012 supplemental statement of the case (SSOC). FINDINGS OF FACT 1. The Veteran currently has a thoracolumbar spine disability to include residuals of an osteochondroma of the thoracic spine, and there is a reasonable basis to attribute the first outward manifestations of such disability to his active military service. 2. The Veteran's currently diagnosed DDD of the lumbar spine is as likely as not related to his active duty service. CONCLUSION OF LAW Residuals of a thoracic osteochondroma and lumbar DDD are the result of a disease or injury incurred in active military service. 38 U.S.C.A. §§ 1110, 1111, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013); VAOPGCPREC 67-90, 82-90. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background As indicated above, the Veteran served on active duty from November 1966 to August 1970. His military occupational specialty (MOS) was aircraft mechanic. At his Board hearing, the Veteran testified that his duties involved serving as a plane captain when his unit was deployed aboard an aircraft carrier. See the November 2010 Board hearing transcript, pgs. 3-4. In particular, he stated that he had to ensure the aircraft was restrained while idle on the deck; this necessitated the lifting, carrying, and movement of heavy chains that weighed between 75 and 124 pounds. Id. He said this could happen up to three times a day when engaged in operations and as many as 7 days a week for several months at a time. Id. He further testified that his duties involved assisting with the loading of ordnance onto aircraft, as necessary. Id. The Veteran's service treatment records (STRs) are negative for treatment of any type of thoracic or lumbar spine-related complaints. His May 1966 enlistment examination and Report of Medical History do not show any type of spinal problem. In addition, the Veteran's July 1970 separation examination was negative for any abnormality of the spine. Chest x-rays from November 1966 and July 1970 were negative for evidence of any type of tumor of the thoracic spine. Post-service treatment records dated in November 1976 include a discharge summary and an operative report from Dr. C.D.R. In the discharge summary, Dr. C.D.R. reported that the Veteran presented with a complaint of backache of several years with progressive worsening with the appearance of a palpable nodule on the left side. Contemporaneous chest x-rays showed evidence of a calcified bony lesion between the 6th and 7th rib at the level of the transverse process. Dr. C.D.R. also noted that a chest x-ray from 1972 showed evidence of the mass at that time. It was felt on admission that the mass represented either an osteochondroma or a possible malignancy. The Veteran underwent surgery in November 1976 in an attempt to remove the mass. The operative report and discharge summary noted that a total excision was not possible but approximately 75 percent of the mass was removed. A pathology report indicated that the tissue was a cartilaginous exosis of the involved ribs and transverse process. There was no comment or finding regarding DDD at that time. Private treatment records dated in March 1991 include an evaluation report from Dr. J.G.M. who noted that the Veteran's "neurological history dates back to 1976, at which time he was experiencing symptoms of shortness of breath, left thoracic region discomfort, and left arm pain." Dr. J.G.M. indicated that these symptoms resolved as a result of the 1976 surgery. Dr. J.G.M. also noted the Veteran's report of an approximately 20-year history of intermittent low back pain associated with sciatica, "[e]arly on this was responsive to chiropractic treatment." He concluded that the Veteran demonstrated symptoms and signs consistent with lumbar radiculopathy, predominantly of an S1 origin. Magnetic resonance imaging (MRI) revealed DDD of the lumbar spine. A follow-up evaluation in April 1991 noted the results of the prior evaluation. The second report also referenced x-rays of the lumbosacral spine from 1985 as showing evidence of some L5-S1 disc space narrowing. This was said to be more pronounced on x-rays from August 1990. The Veteran underwent a left L5-S1 hemilaminotomy, discectomy, and exploration of the L5 root and L5-S1 foraminotomy. In support of his claim, the Veteran submitted a report from his private physician, Dr. R.C. that was dated in December 2009. Dr. R.C. stated that the Veteran had experienced both thoracic and low back problems over the years. He noted the two prior surgeries in 1976 and 1991. He reported that the Veteran's low back problems post-dated his military service by decades and he did not think they could reasonably be attributed to the Veteran's military service. As to the thoracic spine, Dr. R.C. noted that he had reviewed the private treatment records. He then stated, [The Veteran's] military service, by his report, ended in 1970 and unfortunately he has no documentation of an injury during the service. He does report a specific day when he got sharp shooting pain in the general area where the tumor was ultimately discovered. The surgical note from 1976 does indicate review of prior films shows that the osteochondroma was developing on a chest x-ray from 1972. He would have been 25 years of age at that point in 1972 and obviously very premature to be developing an osteochondroma. I think it is reasonable to presume that this was in fact related to his military service. The Veteran was afforded a VA examination in March 2010 at which time the examiner noted and accurately described the contents of the private treatment records in the claims file, including the report from Dr. R.C. The Veteran gave a history of experiencing pain in his thoracic spine in service on one occasion when he attempted to swing a 'chain bag' onto his back. The bag contained anchor chains used to tether aircraft on the carrier. The Veteran reported that he served on temporary duty at a number of locations and the upkeep of his medical records was not done very well. In regard to the lumbar spine, the Veteran reported having had back pain from 1969. He said that he sought chiropractic treatment for pain relief. He described this as general pain associated with picking up, bending over, and going up and down ladders with chain bags. He finally sought medical treatment in 1991 after 20 years of pain. The examiner diagnosed the Veteran with osteochondroma of the thoracic spine, with a scar of the thoracic spine and residual strain, as well as lumbar DDD. In rendering his opinion, the examiner remarked that it was a difficult case as there was no documentation of an injury in service. He also said that it must be taken into account that the Veteran had multiple temporary duty assignments and possible loss of records or minimal record keeping of medical treatment. He said that, to state this, was speculation. With respect to the thoracic spine, the examiner said that osteochondromas were generally tumors of bone that begin development in childhood as a defect in the cartilaginous development of bone and are most often solitary lesions. He also said that it was most likely that the Veteran had developed the osteochondroma before service as they rarely develop in adulthood. The examiner noted the Veteran's statement of being struck in the back with the bag of chains; however, he stated that this would not be the genesis of the osteochondroma. As to the Veteran's lumbar spine, the examiner said this issue was more difficult to address as there is no mention of a lumbar problem in 1976. He said the earliest medical evidence is the 1985 x-ray report referenced in the records from 1991. The examiner said that, without any records that documented complaints of back pain in service or before 1991, one could not say that the medical records support or confirm any back injury or complaint as having occurred in service. The examiner said he could not make an opinion based upon lay report alone without medical documentation to confirm this. The examiner further opined that he could not provide an opinion to link the DDD diagnosed in 1991 to the Veteran's military service versus natural progression and development. Based on the medical evidence, and the lack of evidence of an injury in service, it was not at least as likely as not that the Veteran's DDD was due to injuries in service. As indicated above, the Board remanded this matter in October 2011 in order to obtain a VA medical opinion to address his current claims including the question of whether the Veteran's osteochondroma was a congenital defect or a congenital disease and whether said disability pre-existed his military service. In an October 2011 VA medical opinion, the examiner diagnosed the Veteran with osteochondroma of the dorsal spine (T7) as well as degenerative disease of the lumbar spine. With respect to the osteochondroma, the examiner determined that "osteochondromas can be classified as a disease because they can be treated and get better or they can get worse either by growth or injury." He explained that "[o]steochondromas develop[], in the majority of cases, at a young age. There is no medical evidence to pinpoint exactly when this Veteran's osteochondroma developed." The examiner continued, We have no medical record to say that #1, he had the lesion before service and even though it is likely (statistically) that he did there is #2, no recorded evidence to say that his stated chain bag injury caused a fracture or other injury to the lesion. It is possible the lesion could have continued to grow and have pain symptoms increase as a naturally occurring process unrelated to service per se. As to the degenerative disease of the lumbar spine, the examiner stated, [T]here is no medical evidence of record that a low back injury occurred in service and concurring with the statement in the previous C&P exam, even though the Veteran is a credible historian, without medical documentation one has to conclude that the present degenerative lumbar spine disease is a natural process of aging and cannot be pinpointed to a specific injury, since no history or documentation of such is present. The October 2011 VA examiner thereafter provided a negative conclusion as to the question of medical nexus between the currently diagnosed osteochondroma of the thoracic spine with DDD of the lumbar spine and the Veterans' military service, and he reiterated these conclusions in an October 2011 addendum following review of the claims file. II. Analysis In addition to the above-mentioned requirements for service connection, it should also be noted that claimants are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects and infirmities noted at entry. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b). Only such conditions as are recorded in entrance examination reports are to be considered as "noted," and a history of pre-service existence of conditions recorded at the time of examination does not constitute a "notation" of such conditions. Crowe v. Brown, 7 Vet. App. 238, 245 (1994); see also Vanerson v. West, 12 Vet. App. 254, 259 (1999) (history of pre-service existence of conditions recorded at the time of examination will be considered together with all other material evidence in determinations as to inception (citing 38 C.F.R. § 3.304(b)). If the presumption of soundness is applicable, in order to rebut the presumption, 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. A veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also VAOPGCPREC 3-2003. In rebutting the presumption of soundness, records made prior to, during or subsequent to service, concerning the inception of the disease/disorder may be considered. See Harris v. West, 203 F.3d 1347, 1350 (Fed. Cir. 2000). A preexisting injury or disease will be considered to have been aggravated by active 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 (West 2002); 38 C.F.R. § 3.306 (2013). 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 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Pertinent regulations provide that congenital or developmental defects as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (2013). See Terry v. Principi, 340 F.3d 1378, 1384 (Fed. Cir. 2003) (upholding VA's regulation that a congenital disorder is not a disease or injury as contemplated by 38 U.S.C.A. §§ 1110, 1131). Service connection may be granted for congenital diseases, as opposed to congenital defects. See 38 C.F.R. § 3.303(c); VAOPGCPREC 67-90, VAOPGCPREC 82-90. In general, a congenital problem is considered to be a disease if it is capable of improving or deteriorating while a defect is not considered capable of improving or deteriorating. VAOPGCPREC 82-90. Further, a congenital/developmental disease may be considered for service connection if it manifested itself during service. However, VAOPGCPREC 67-90 provides that "[t]he mere genetic or other familial predisposition to development the symptoms, even if the individual is almost certain to develop the condition at some time in his or her lifetime, does not constitute having the disease." The opinion further states that the individual must have symptomatology and/or pathology with pathology defined as active disease process. Only then can the individual be said to have developed the disease. In addition, the Court has stated that "...the mere fact that a condition is the result of a congenital cause does not necessarily mean that the condition itself manifested before service or that it was not aggravated by service." See Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). In this matter, the Veteran asserts entitlement to service connection for a disability of the thoracolumbar spine including residuals of an osteochondroma and DDD of the lumbar spine. For the reasons set forth below, the Board concludes that service connection is warranted. To this end, the Veteran is asserting entitlement to service connection for two separate spine disabilities, which will be granted in a common discussion below. Here, based on the findings of the October 2011 VA examiner, the medical evidence demonstrates that the Veteran's osteochondroma of the thoracic spine is a congenital disease that did not manifest prior to service. See the VA examination report dated October 2011. Indeed, the Veteran's May 1966 enlistment examination was negative for any type of spinal problem. Chest x-rays from November 1966 and July 1970 were negative for evidence of a tumor of the thoracic spine. Additionally, the post-service medical evidence does not clearly and unmistakably establish that the Veteran's osteochondroma was manifest prior to service. Specifically, the October 2011 explained, "[o]steochondromas develop[], in the majority of cases, at a young age. There is no medical evidence to pinpoint exactly when this Veteran's osteochondroma developed." Additionally, the Veteran has not endorsed manifestation of the osteochondroma prior to service. To this end, the Board notes that the mere genetic or familiar predisposition to develop the symptoms, even if the individual is almost certain to develop the condition at sometime in his life, does not constitute having the disease. Only when symptomatology and/or an active disease process exist can a claimant be said to have developed the disease. See VAOPGCPREC 67-90. In reviewing the medical evidence of record, the Board finds that it does not reflect that it is clear and unmistakable that the Veteran's osteochondroma first manifested itself prior to his active service. Generally, service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In order to establish direct service connection for the claimed disorder, generally, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish the elements of service connection 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. See Jandreau, 492 F.3d at 1377. In this case, although the STRs do not provide a diagnosis of osteochondroma of the thoracic spine in service, the Board finds that the evidence of record does reflect that it likely first manifest during the Veteran's active military service. In that regard, the Veteran has provided lay evidence of experiencing discomfort in the thoracic region. He testified that this symptomatology began during service and worsened in the years following service. See, e.g., the November 2010 Board hearing transcript. As indicated above, private treatment records dated in November 1976 noted that a chest x-ray from 1972 showed evidence of osteochondroma. Moreover, in rendering his opinion, the October 2011 VA examiner opined that "[i]t is possible the lesion could have continued to grow and have pain symptoms increase as a naturally occurring process unrelated to service per se." To this end, the Board notes that the question raised in this matter is not whether there was something in service that caused the osteochondroma, but rather, was it first manifest in service. Based upon a thorough review of the October 2011 opinion and well as the Veteran's credible contentions of the progression of his symptomatology, the Board finds that it likely did. Accordingly, the Board has weighed the probative evidence of record and finds that the evidence of record is at least in equipoise as to whether the congenital osteochondroma of the thoracic spine first manifested during the Veteran's military service. With respect to the other diagnosed spine disability, the Board has thoroughly reviewed the record and concludes that the evidence supports a finding that the Veteran's currently diagnosed DDD of the lumbar spine was incurred during his active duty service. As indicated above, the Veteran testified that he injured his back while performing his military duties, specifically lifting, carrying, and moving heavy chains that weighed between 75 and 124 pounds. See the November 2010 Board hearing transcript. The Veteran has indicated that he has suffered from low back symptoms dating from prior to his military discharge. Id. He testified under oath that the low back symptomatology began during service and has continued to this day. Id. Here, the Board finds credible the Veteran's statements regarding in-service difficulties, as well as the onset of his chronic low back pain. As indicated above, post-service treatment records dated in March 1991 document the Veteran's report of a 20-year history of low back pain. Also, an April 1991 report referenced x-rays of the lumbosacral spine from 1985 as showing evidence of some L5-S1 disc space narrowing. The Board recognizes that the October 2011 VA examiner provided a negative nexus opinion concerning the Veteran's currently diagnosed DDD of the lumbar spine and his military service. However, the examiner failed to consider the Veteran's competent and undisputed assertions of post-service low back symptomatology and also did not acknowledge the March 1991 private treatment note in which it was noted that the Veteran complained of a 20-year history of low back problems or the 1985 x-ray report documenting disc space narrowing at L5-S1. Furthermore, the Veteran is competent to report his symptomatology, such as back pain. Layno, supra. As indicated above, a layperson is competent to testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398,403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Therefore, the Board finds the statements of the Veteran to be competent and credible evidence documenting his continued low back symptomatology dating from his military service to the present. In short, the Veteran's lay statements to the effect that he had back problems beginning in service and has had pain thereafter have not been rebutted. Accordingly, the Board has weighed the probative evidence of record and finds that the evidence of record is at least in equipoise as to whether the currently diagnosed DDD of the lumbar spine is related to disease or injury incurred in the Veteran's military service. ORDER Entitlement to service connection for residuals of a thoracic osteochondroma and lumbar DDD is granted. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs