Citation Nr: 1341397 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 09-07 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a back disability, to include as being secondary to service-connected residuals of fracture of the left femur. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1979 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2010, the Veteran presented testimony before a Veterans Law Judge at the RO. A transcript of the hearing is in the claims file. In a March 2012 letter, the Veteran and his representative were notified by the Board that the Veterans Law Judge who conducted the November 2010 hearing was no longer employed by the Board, and if the Veteran requested another hearing before a Veterans Law Judge, he was to respond within 30 days from the date of the letter. The Board thereafter received a response from the Veteran in March 2012, wherein he indicated he wanted to have another hearing before a Veterans Law Judge at the RO (i.e., "Travel Board hearing"). The Board then remanded this claim in April 2012 for the Veteran to be scheduled for a Travel Board hearing. However, in July 2012 correspondence, the Veteran requested that his hearing before a member of the Board of Veterans' Appeals be canceled and his record forwarded to the Board for a decision to be made based on the evidence of record. Accordingly, his request for another hearing is considered to be withdrawn and his claim will be reviewed based on the evidence of record. See 38 C.F.R. § 20.704(d) (2012). In February 2011 and September 2011, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that his diagnosed back disability is due to his military service or alternatively his service-connected residuals of fracture of the left femur. He has specifically contended that that due to his service-connected femur fracture, he has a leg length discrepancy which has caused a back condition. The Veteran's service treatment records document treatment for a lumbar strain in March 1983 which was sustained as a result of a motor vehicle accident. He received subsequent treatment a week later for low back pain and was prescribed heat for treatment. Additionally, he fractured his left femur in service in July 1983 for which he is currently service-connected. A VA examination report dated April 1985 notes a slight shortness of the left lower limb by a half inch as compared with the right. VA outpatient treatment reports dated November 2007 show that the Veteran complained of a painful back due to a short leg. The assessment was a short left leg. In a January 2008 letter from the Veteran's private family practitioner, that physician stated that the Veteran has a leg length discrepancy due to his service-connected leg trauma and that he has compensative scoliosis secondary to the leg length discrepancy, which has resulted in intermittent back pain. There was no rationale provided for the physician's statement. The Veteran was afforded a VA examination in January 2008. The examiner diagnosed the Veteran with congenital spina bifida occulta at the L5 posterior aspect. He stated that there was no report of scoliosis on review of radiographic imagery from August 2007. He also stated that there was no evidence of degenerative joint disease and no evidence of higher lumbar or lower thoracic spine problems. The examiner opined that there was no evidence to support the Veteran's claim that his back pain is due to his service-connected residuals of a fracture to the left femur. In addition, the examiner stated that on evaluation the Veteran's left leg did not actually demonstrate any shortening. The examiner rather reported that the left leg was a half centimeter longer than the right leg. The examiner did not provide an opinion as to whether the Veteran's residuals of fracture to the left femur aggravated the back disability. The Veteran was provided a subsequent VA examination in March 2011. After examination of the Veteran and consideration of his medical history, the VA examiner diagnosed the Veteran with lumbar spine spina bifida occulta at L5 and lumbar spine degenerative disc disease and concluded that "[i]t would be only with resort to mere speculation to opine whether or not the Veteran's current claimed back condition [diagnoses omitted] is caused or aggravated to any degree by his left femur condition." The examiner's rationale discussed the lack of evidence or findings to support the claim, and included the following: "Therefore, there is no current objective evidence that any of the Veteran's current spine conditions are caused or aggravated to any degree by his SC left femur condition." The Veteran was afforded another VA examination in November 2011. After examination of the Veteran and consideration of his medical history, the VA examiner diagnosed him with degenerative disc disease of the lumbar spine and spina bifida occulta. The examiner thereafter concluded that the Veteran's back disabilities are less likely as not causally related to military service and were not caused or aggravated by the left femur fracture residuals. With regard to her finding that the Veteran's back disability is not caused or aggravated by his left femur fracture residuals, the examiner noted that there is no indication of any abnormal healing or loosening or instability of the left femur fracture on examination nor on imaging for the left femur condition to exert undue stress on the lumbar spine. Moreover, there was no objective evidence of leg length discrepancy to indicate undue stress from the left femur condition on the lumbar spine. In addition, degenerative changes of the spine are on both sides of the spine, not predominantly on the left. The examiner further reported that there was no clinical evidence of thoracolumbar scoliosis, and inspection of the back, the spine, waist level, bottom edge of buttocks, and level of the knees revealed level and symmetric positions. Although the examiner indicated that it was possible that the Veteran may have a mild rotary scoliosis lower in the lumbar spine which is not clinically evident on examination, if so, it would be so mild as not to be functionally significant. Further, spina bifida occulta noted in imaging was congenital and was an incidental finding without clinical significance. The examiner opined that the Veteran's degenerative disc disease of the lumbar spine is predominantly age related and impacted by genetics, family history, stresses of daily life, and occupation. With regard to her finding that the Veteran's back disability is not related to his military service, the examiner noted that a review of the Veteran's service treatment records was silent for any back condition. However, as discussed above, the Veteran's service treatment records specifically discuss treatment for his lower back in March 1983 as a result of a motor vehicle accident. In light of the above, the Board is of the opinion that another VA examination would assist in ascertaining whether the Veteran's current back disability is related to his military service or his residuals of fracture of the left femur. The Board also notes that the November 2011 VA examiner referenced an August 2007 VA treatment record documenting an X-ray of the Veteran's lumbar spine which revealed an impression of "[s]pina bifida occulta at L5. Rest of the spine is essentially normal." The Board observes that the earliest VA treatment records associated with the Veteran's claims folder are dated September 2007. The procurement of pertinent VA medical reports, including those prior to September 2007 is required. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records as follows: a. those dated prior to September 2007, pertaining to the Veteran's back disability, to include an August 2007 X-ray report. b. those dating from October 2010. 2. Thereafter, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his back disability. The Veteran's claims folder must be made available to the examiner. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims folder and the clinical findings of the examination, the examiner must provide an opinion as to the following: a. Explain whether spina bifida occulta is a congenital defect or disease. [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990) (citing Durham v. United States, 214 F.2d 862, 875 (D.C. Circuit 1954)]. b. If it is a congenital defect, explain whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed injury or disease in service that resulted in additional back disability. c. If it is a disease, state whether it is clear and unmistakable (obvious, manifest, and uneatable) that spina bifida occulta pre-existed active service. d. State whether it is clear and unmistakable (obvious, manifest, and uneatable) that pre-existing spina bifida occulta WAS NOT aggravated (i.e., permanently worsened) beyond the natural progress during the Veteran's service. e. What are the diagnoses for the remainder of the Veteran's current back disabilities? Please specifically address whether the Veteran has scoliosis. f. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran has a current back disability, including degenerative disc disease, which is causally related to his military service, to include treatment for a low back strain in March 1983? g. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran has a current back disability, including degenerative disc disease, which is caused by his service-connected residuals of left femur fracture, to include as a result of any altered gait resulting there from? Please include a statement (including any reconciliation of conflicting findings) of any leg length discrepancy. h. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's service-connected residuals of left femur fracture aggravates (i.e., worsens beyond the natural progress) the current back disability, including degenerative disc disease. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's back disability found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected residuals of left femur fracture. The examiner should indicate in his/her report that the claims file was reviewed. A rationale for all opinions expressed should be provided. A report should be prepared and associated with the Veteran's VA claims folder. 3. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).