Citation Nr: 1514237 Decision Date: 04/02/15 Archive Date: 04/09/15 DOCKET NO. 13-05 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE 1. Whether new and material evidence has been received sufficient to reopen a previously denied and final claim of entitlement to service connection for a chronic back disability. 2. Entitlement to service connection for a thoracolumbar spine disability at T12-L1. 3. Entitlement to service connection for a lumbosacral disability at L5-S1 and a transitional vertebra with right-sided sacralization of the transverse process of the lumbosacral spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1962 to June 1965. His service records show that he earned the Parachutist Badge. The current matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision rendered by the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's application to reopen his previously denied and final claim for service connection for a chronic back disability. For the reasons that will be further discussed below, the issue of entitlement to service connection for a lumbosacral disability at L5-S1 and a transitional vertebra with right-sided sacralization of the transverse process of the lumbosacral spine is REMANDED to the RO/Agency of Original Jurisdiction (AOJ). The Veteran and his representative will be notified by VA if any further action is required on their part. FINDINGS OF FACT 1. The RO denied the Veteran's original claim of entitlement to service connection for a chronic back disability in a final September 1965 rating decision. 2. Evidence received since the final September 1965 rating decision that denied the Veteran's claim for service connection for a chronic back disability includes a VA medical opinion linking a compression fracture of the T12 thoracic vertebra to a parachuting injury in service; this is not duplicative of evidence previously submitted and considered on the merits, and the evidence, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate this claim. 3. A compression fracture of the T12 vertebra with anterior wedging of the L1 vertebra had its onset during active military service. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of entitlement to service connection for a chronic back disability have been met, and the claim is reopened for a de novo review on the merits. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). 2. Residuals of a traumatic injury of the T12-L1 vertebrae, manifested by a mild decrease in the vertebral height at the anterior aspect of T12 and anterior wedging at L1, were incurred in active duty. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to notify and to assist. In light of the favorable decision to reopen the claim of entitlement to service connection for a chronic back disability for a de novo review on the merits, the grant of service connection for a thoracolumbar spine disability at T12-L1, and the remand for development of the remaining issue of entitlement to VA compensation for a lumbosacral disability at L5-S1 and a transitional vertebra with right-sided sacralization of the transverse process of the lumbosacral spine, a detailed discussion as to how VA satisfied any applicable duty to notify and to assist pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) is not necessary. See 38 U.S.C.A. §§ 5103 and 5103A (West 2014); 38 C.F.R. § 3.159(c) (2014). II. Whether new and material evidence has been received sufficient to reopen a previously denied and final claim of entitlement to service connection for a chronic back disability. In general, unappealed rating decisions of the RO and the Board are final. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2014). In order to reopen a claim there must be added to the record "new and material evidence." 38 U.S.C.A. § 5108 (West 2014). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2014). The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a) (2014). The credibility of the evidence is presumed for the purpose of reopening. Justus v. Principi, 3 Vet. App. 510 (1992). In this regard, the Board is mindful that actually weighing the probative value and assessing the credibility of evidence is appropriate only if the Board first finds such evidence to be new and material to the service connection claim and reopens the claim for a de novo review on the merits. By history, the Veteran's original claim for VA compensation for a chronic back disability was denied in a September 1965 rating decision. Evidence considered at the time of that claim included his service treatment records, showing that his spine was normal on pre-induction examination in December 1961 and that he indicated that he had no back problems in an accompanying medical history questionnaire. The examination report contains a notation that no additional defects were discovered upon a subsequent physical inspection in February 1962. The Veteran was accepted for service and entered active duty in June 1962. Service outpatient medical reports show treatment for complaints of sacrum soreness in August 1962. Afterwards, the records reflect that the Veteran was involved in an accident during paratrooper training in June 1963, when his parachute apparently failed to properly deploy, causing him to make a hard parachute landing. X-rays of his spine were obtained in June 1963, shortly after the accident, which revealed anterior wedging of his L1 vertebrae that was regarded as either possibly developmental or secondary to trauma, with lumbar scoliosis with convexity to the left and disc narrowing between the L5-S1 vertebrae. Subsequent outpatient notes show treatment for back pain in July 1963 and August 1963. The report of a May 1965 service hospital summary, following the Veteran's surgery for a hernia, incidentally noted that he had a history of back injury in 1963 due to a double parachute malfunction. No fracture was reported, but the Veteran continued to experience back discomfort when waking. The report of a May 1965 separation examination shows that the Veteran's spine was clinically normal but that he complained of experiencing backaches every night, which he attributed to his in-service parachuting accident. The Veteran separated from active duty in June 1965 and almost immediately filed a claim for service connection for a chronic back disability due to his parachuting accident. In August 1965, he was examined by VA. The examining clinician noted his history of an in-service parachuting accident with current complaints of back pain. Lumbosacral spine X-rays revealed a slight scoliosis to the left with a congenital anomaly at the lumbosacral junction consisting of a transitional vertebra with right-sided sacralization of the transverse process and pseudo-joint formation. Anterior wedging of the last thoracic vertebral body was noted, with the examiner opining that it "could be the result of old trauma." Inexplicably, the August 1965 report concluded that that the Veteran's orthopedic examination was negative. On the above basis, a September 1965 RO decision denied the Veteran's claim for service connection for a back disability on the basis that "the records indicate no injury to the veteran's back. The veteran complains of pain in his back during active service, although this can be related to his congenital abnormality." Notice of this denial and his appellate rights were sent to the Veteran in correspondence dated in September 1965. No timely appeal was filed thereafter and the rating decision became final. Over 46 years thereafter, the Veteran submitted an application to reopen his claim for VA compensation for a chronic back disability in November 2011. His application was denied in an RO rating decision dated in June 2011, for failing to submit new and material evidence. The Veteran filed a timely appeal of the adverse decision. During the course of this appeal, the RO provided him with a VA examination in January 2012, which shows, among other things, an X-ray finding of a mild decrease in height of the anterior aspect of the T12 vertebral body that could represent a compression fracture, which the examining clinician opined was at least as likely as not attributable to a traumatic injury consistent with the Veteran's history of a military parachuting accident during service in June 1963. The Board finds that this evidence is both new and material to the claim for service connection for a chronic back disability as it is not duplicative of evidence previously submitted and considered on the merits, and the evidence, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate this claim. The Board thus reopens the matter for a de novo review on the merits. 38 U.S.C.A. § 5108 (West 2014). III. Entitlement to service connection for a chronic thoracolumbar spine disability at T12-L1. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board is obliged to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted for certain chronic diseases listed at 38 C.F.R. § 3.309(a), as well as for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2014). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b) (2014). Continuity of symptomatology is required where the disorder noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. As previously discussed, the pertinent clinical evidence clearly demonstrates that the Veteran's spine was assessed as normal on entry into service and that he was involved in a parachuting accident during active duty, consistent with the activities that qualified him for the Army Parachutist Badge. In-service X-rays of his spine in June 1963, which were obtained shortly after the accident, revealed anterior wedging of his L1 vertebrae that was regarded as either "possibly developmental or secondary to trauma." Although his spine was deemed to be clinically normal on service separation examination in May 1965, he complained of experiencing backaches every night, which he attributed to his in-service parachuting accident. An August 1965 VA examination conducted very shortly after service separation shows that there was anterior wedging at the last thoracic vertebra that appeared to the examiner to represent an old trauma. This finding is noted again over 45 years later in a January 2012 VA examination, which shows a mild decrease in height of the anterior aspect of the T12 vertebral body on X-ray study, which could represent a compression fracture. The examining clinician opined that this was at least as likely as not attributable to a traumatic injury that was consistent with the Veteran's established history of a military parachuting accident during service in June 1963. At this point, the Board recalls the service X-ray study from June 1963, which presented a relatively equipoisal stance regarding the etiology of the finding of anterior wedging at L1, attributing it to either a "possibly developmental" condition or to traumatic injury. As this opinion was made immediately proximate to the in-service parachuting accident, and as subsequent evidence indicates that clinical findings regarding the T12 vertebrae (located immediately adjacent to L1) represented residuals of a compression fracture, and as the Veteran has presented credible written testimony regarding the continuity of back pain symptomatology since the precipitating injury in service to the present time, the Board will resolve all doubt and conclude as a factual matter that the claimant sustained a traumatic injury, including a compression fracture, of his thoracolumbar spine at T12-L1 during active duty. Service connection for residuals of a compression fracture at T12-L1, manifested by a mild decrease in the vertebral height at the anterior aspect of T12 and anterior wedging at L1, is thusly granted. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for a chronic back disability; the claim is reopened for de novo adjudication on the merits. Service connection for residuals of a compression fracture at T12-L1, manifested by a mild decrease in the vertebral height at the anterior aspect of T12 and anterior wedging at L1, is granted. REMAND Having reopened the Veteran's claim for VA compensation for a chronic back disability for a de novo review, the Board observes that the evidence raises several questions regarding other components of the Veteran's current back disability that require further evidentiary development before a decision can be rendered that addresses these on the merits. The Veteran's service medical records reflect that in June 1963, following his parachuting injury, he was noted to have disc narrowing between his L5-S1 vertebrae on X-ray examination. However, prior to the June 1963 accident, the Veteran was treated for complaints of sacrum soreness without any reported precipitating cause. Anatomically, the sacrum is encompassed by the lumbosacral region. Complaints of persistent back pain have been presented ever since. The current VA examination of January 2012 indicates that the Veteran underwent a lumbar discectomy in 1978. These records have obvious relevance to the current claim, but as they are not yet associated with the evidence, they should be obtained for consideration in order that a detailed picture of the Veteran's pertinent clinical history regarding his lumbosacral spine may be obtained. See Leap v. Derwinski, 2 Vet. App. 404, 405 (1992); White v. Derwinski, 1 Vet. App. 519, 521 (1991). Therefore, the case should be remanded to the RO/AOJ, after which the Veteran should be contacted and asked to provide as many identifying details as possible regarding the source of his treatment for a lumbar discectomy (which reportedly was performed in 1978), after which the RO/AOJ should attempt to obtain copies of these treatment records for inclusion in the evidence. The Veteran's spine was deemed to be clinically normal on pre-induction examination in December 1961, and no defects were subsequently detected on physical inspection in February 1962. He was accepted for active duty in June 1962. However, approximately one year after his entry into service, he was involved in a parachute accident that produced back injuries. In addition to the L1 vertebral defect for which service connection has been awarded by action of this appellate decision, radiographic examination of his spine in June 1963 revealed lumbar scoliosis with convexity to the left and disc narrowing at L5-S1. Post-service VA examination in August 1965 also revealed slight lumbar scoliosis to the left with a "congenital anomaly" at the lumbosacral junction consisting of a transitional vertebra with right-sided sacralization of the transverse process and pseudo-joint formation. VA examination over 45 years later, in January 2012, notes that the Veteran reported a history of lumbar discectomy in 1978. X-ray of the lumbosacral spine in January 2012 revealed, as relevant, a transitional vertebra with right-sided sacralization of the trans-thoracic process, facet hypertrophy, and decreased disc space with osteophyte stenosis at L5-S1, which the examiner opined was "not due to military service" but did not otherwise provide any rationale for this opinion. The examination report did not mention a scoliosis condition of the Veteran's spine being present. Notwithstanding the findings of a normal spine on pre-enlistment examination in December 1961 and February 1962, the Veteran's service treatment records show treatment for sacrum soreness prior to the June 1963 parachuting accident and include a notation of lumbar scoliosis to the left and a "congenital anomaly" at the lumbosacral junction on X-ray study during service in June 1963 and immediately post-service in August 1965. The Board finds that a VA examination is needed, during which a clinician's opinion, based on a thorough review of the pertinent record, should be obtained in order to address the following questions: (1) Is it as likely as not that the Veteran's current lumbosacral disability, presently diagnosed as decreased disc space with osteophyte stenosis at L5-S1 (and also, reportedly, status post lumbar discectomy in 1978), is related to, or had its onset in active military service, given his history of a parachuting accident during active duty in June 1963, and X-ray finding in June 1963 of disc narrowing between his L5-S1 vertebrae, with subsequent post-service history of lumbar discectomy? (2) Do the conditions of a lumbar scoliosis and a congenital anomaly at the lumbosacral junction, which were noted during and shortly after the Veteran's service, presently exist? (3) If scoliosis and/or a congenital anomaly at the lumbosacral junction presently exist, did this/these condition(s) clearly and unmistakably exist prior to the Veteran's entry into active service in June 1962? (If so, the examiner should reconcile his opinion with the Veteran's pre-service examinations which show no spine abnormality being present. The examiner should also discuss the significance or non-significance of the notation of treatment for sacrum soreness in August 1962, almost one year prior to the Veteran's June 1963 parachuting injury.) (4) If it is determined that lumbar scoliosis and/or a congenital anomaly at the lumbosacral junction existed prior to the Veteran's entry into active service, is there clear and unmistakable evidence (i.e., obvious and manifest) that did these conditions were not aggravated (i.e., did not undergo a permanent worsening beyond their normal clinical progression) by active military service, given the clinically documented parachute accident and resulting traumatic thoracolumbar spine injury at T12-L1 during active duty in June 1963? Accordingly, the case is REMANDED to the RO/AOJ for the following actions: 1. The RO/AOJ should contact the Veteran and request that he provide detailed information about all sources of his treatment (both private and VA) for chronic back symptoms. After obtaining the appropriate waivers, the RO/AOJ should attempt to obtain copies of updated VA and private medical records pertinent to the Veteran's treatment for back symptoms that have not yet been associated with the evidence. All records obtained must be associated with his claims folder. These records should include, but are not limited to, those relating to his reported history of treatment for a lumbar discectomy in or around 1978. If the RO cannot obtain records identified as relevant by the Veteran, a notation to that effect should be included in the file. The Veteran is to be notified of unsuccessful efforts. 2. Thereafter, the Veteran should be provided with a VA medical examination by the appropriate clinician. The Veteran's claims file should be made available by the clinician assigned to this task, who should review his pertinent clinical history contained in his claims file in conjunction with the examination. Careful attention should be directed to the clinical evidence relating to the state of his spine during active duty. Then, based on this review, the clinician should present objective opinions as to the following queries: (a.) Is it at least as likely as not (i.e., a 50 percent likelihood or greater) that the Veteran's current lumbosacral disability, presently diagnosed as decreased disc space with osteophyte stenosis at L5-S1, is related to, or had its onset in active military service, given his history of a parachuting accident during active duty in June 1963, and X-ray finding in June 1963 of disc narrowing between his L5-S1 vertebrae, with subsequent post-service history of lumbar discectomy? (b.) Does the Veteran's lumbar scoliosis and/or a congenital anomaly at his lumbosacral junction, which were noted during and shortly after service, presently exist as a diagnosed clinical entity? (c.) If lumbar scoliosis and/or a congenital anomaly at the lumbosacral junction, as a diagnosed clinical entity, presently exists, did this/these condition(s) clearly and unmistakably exist prior to the Veteran's entry into active service in June 1962? (If so, the examiner should reconcile his opinion with the Veteran's pre-service examinations which show no spine abnormality being present. The examiner should also discuss the significance or non-significance of the notation of treatment for sacrum soreness in August 1962, almost one year prior to the Veteran's June 1963 parachuting injury.) (d.) If the examining clinician determines that lumbar scoliosis and/or a congenital anomaly at the lumbosacral junction existed prior to the Veteran's entry into active service, is there clear and unmistakable evidence (i.e., obvious and manifest) that did these conditions were not aggravated (i.e., did not undergo a permanent worsening beyond their normal clinical progression) by active military service, given the clinically documented parachute accident and resulting traumatic thoracolumbar spine injury at T12-L1 during active duty in June 1963? The clinician's report must include a detailed supportive rationale and explanation of all opinions presented. If the opining clinician is unable to provide the requested opinion(s) without resorting to speculation, it should be so stated with a complete rationale as to why the examiner arrived at this conclusion. 3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, and ensuring that the development undertaken is in substantial compliance with the instructions in this REMAND, the Veteran's claim of entitlement to service connection for a lumbosacral disability at L5-S1 and a transitional vertebra with right-sided sacralization of the transverse process of the lumbosacral spine should be adjudicated on the merits following review of all relevant evidence associated with the claims file. If it is clinically determined that a spinal condition pre-existed the Veteran's military service, the adjudication of this claim should also include consideration of aggravation by military service of the pre-existing spinal condition. If the maximum benefit sought on appeal remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters 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 or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs