Citation Nr: 1721785 Decision Date: 06/14/17 Archive Date: 06/23/17 DOCKET NO. 12-08 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the benefit sought on appeal. In March 2015, the Veteran appeared and testified at a videoconference hearing before the undersigned acting Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's record. In May 2015 the Board determined that new and material evidence had been submitted to reopen the claim of service connection for a low back disability. The Board reopened the claim and the matter of service connection for a low back disability was remanded for additional development. FINDING OF FACT Affording the Veteran the benefit of the doubt, the Board determines that the Veteran was sound upon entrance into active service, and his low back disability did not preexist service. CONCLUSION OF LAW Affording the Veteran the benefit of the doubt, the criteria for entitlement to service connection for low back disability have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the favorable disposition of the claim of entitlement to service connection for low back disability, the Board finds that all notification and development action needed to fairly adjudicate that claim has been accomplished. Legal Criteria, Factual Background and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). 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 or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran contends his low back disability should be service connected. Based on the evidence below, the Board finds the evidence is in relative equipoise and affording the Veteran the benefit of the doubt, service connection for low back disability is warranted. The Veteran satisfies the first threshold element of service connection, a current disability. See Id. In a September 2015 Disability Benefits Questionnaire (DBQ) for the back diagnoses of degenerative arthritis of the spine, spinal fusion, spondylolisthesis, and lumbar spine surgical fusion, laminectomy (times 6) with residual scars were listed. Affording the Veteran the benefit of the doubt, he satisfies the second threshold element of service connection, an in-service incurrence or aggravation of a disease or injury. Id.; 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board notes that a Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, the VA must show by clear and unmistakable evidence both (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. The claimant 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 VAOPGCPREC 3- 2003; see also Wagner v. Principi, 370 F.3d 1089, 196 (Fed. Cir. 2004). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, certainly not in exhaustive detail, each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the record shows, or fails to show, with respect to the claim. In this case, initially a disability of the spine was not noted on of the Veteran's June 1971 enlistment examination [Reports of Medical Examination]. On the Veteran's June 1971 Report of Medical History, there was no indication of a back disorder of any kind. A June 1971 Medical Board examination report reveal abnormality of the spine on clinical evaluation. The diagnosis was spondylolysis, L5-S1 1st degree, symptomatic, line of duty, existed prior to service. Service treatment records (STRs) show that in September 1971 the Veteran was referred from the dispensary for a back screening. He was treated with a postural low back exercise program and a temporary profile. The diagnosis was 1st degree spondylolisthesis at L5-S1. A September 1971 STR notes a history of chronic low back pain since childhood, which had been aggravated by carrying heavy weight. It was noted that the Veteran had moderate postural lordosis and kyphosis. Another September 1971 STR reports the Veteran was seen with chronic back pain. X-rays of the lumbar spine taken in service in September 1971 shows grade I spondylolisthesis of the L5-S1 interspace. In a September 1971 physical therapy clinical record chronic back pain was noted. X-rays revealed grade I spondylolisthesis of L5-S1 interspace; auto accident was noted. He had moderate thoracic kyphosis and lumbar lordosis, and pain in L1 to L5 area bilaterally. A September 1971 physical profile record noted 1 degree spondylolisthesis L5-S1. Restrictions included no standing over 2 hours. No walking or marching over 2 miles. No lifting over 40 pounds. No jumping, overhead duty, pushups or pullups. In October 1971 the Veteran was admitted to the U.S. Army Hospital for presentation to a Medical Board. He reported a 3-year history of pain in the low back. He also complained that his leg would shake on bending and he had a sensation of instability in the back. Physical examination revealed left paraspinous spasms. Straight leg raising was negative. Deep tendon reflexes were full and equal. X-ray examination reveals 1st degree spondylolysis at L5-S1. Routine laboratory studies were within normal limits. The diagnosis was spondylolysis, L5-S1, 1st degree, symptomatic, existed prior to service. An October 1971 Medical Board Proceedings show the Veteran had chronic low back pain. The diagnosis was spondylolysis, L5-S1 1st degree, symptomatic. He was found to be medically fit. The Board, however, recommended separation from service for a condition that existed prior to service. In a postservice November 1971 psychiatric examination report the Veteran reported he had a motorcycle accident while in service in October 1971. He struck the rear of a motor vehicle, and went to AFB where x-rays were taken and reported negative. X-rays of the lumbosacral spine in November 1971 reveals bilateral spondylolysis present at L5-S1 with no spondylolisthesis. There was no loss of vertebral body height and no narrowed interspaces were seen. The lumbosacral spine was otherwise negative. Private treatment records dated May 1973 to May 1974 show the Veteran was seen with complaints of low back pain. He stated he injured his back in April 1973, while employed with a steel company. He was lifting a top plate of steel when he developed a sudden low back discomfort. In relating his medical history the Veteran stated that around the age of 9 he was having difficulty with his back and was x-rayed but nothing was found. He stated he was in the service and after a few months he developed a bout of low back pain while in basic training. He was given a medical discharge because of the spondylolisthesis or a cracked vertebrae that was found in his back. He was asymptomatic following his discharge from service until he injured his back in April 1973. X-rays of the lumbosacral spine reveal a spondylolysis of L5. There was no other evidence of fracture dislocation, bone or joint pathology and no evidence of any spondylolisthesis. The impression was spondylolysis of L5, posttraumatic lumbosacral sprain. In an October 1973 letter Dr. R.E.S. noted that the Veteran has a spondylolysis of L5. Dr. R.E.S. explained to the Veteran that he sustained a lumbosacral sprain and that he has a preexisting spondylolysis of L5. In an October 1975 letter from Dr. R.E.S. he notes that the Veteran was seen with complaints of low back pain, which he dated by to August 1975 when he injured his back pulling up a wall working for a construction company. Dr. R.E.S.'s impression was the Veteran had a lumbosacral sprain super-imposed on previous operated back for disc and fusion. An April 1989 clinical record shows that the Veteran stated that in 1971 he slipped and fell on some ice causing injury to the low back area. As a result of that injury the Veteran underwent a surgical procedure in 1973. The impression was lumbar surgery times 3. In March 1990 the Veteran was hospitalized with diagnoses of lumbar radicular syndrome secondary to left and right L5 neural foraminal stenosis, L4-5 and L5-S1 pseudoarthrosis, and unstable L5-S1 spondylolisthesis. On admission the Veteran reported that his back was initially injured in 1971 in service and has had multiple surgery since that time with reported diagnoses of unstable spondylolisthesis, T7 compression fracture and C5-6 degenerative disease. He also reported having multiple injuries to the low back area subsequent to the inservice injury. An excerpt (entitled "Diseases Associated with Low Back Pain") from what appears to be a medical treatise, submitted by the Veteran in 1990, notes, "...The most common clinical manifestation of spondylolisthesis is low back pain. Although the cause of this type of back pain in the adult has been studied extensively, its origin is not clear. There is no clear understanding of how so many patients develop this lesion between the ages of 5 and 7 but still have no back complaints until perhaps age 35, when a sudden twisting or lifting motion will precipitate an acute episode of back and leg pain. The pain is improved with extension of the spine and exacerbated with flexion....Fifty percent of patients will normally associate an injury with the onset of the symptoms. The physician should be aware that it is possible to sustain an acute fracture of the pars, but this is a very rare occurrence..." An April 2012 independent medical examination report by the Veteran's chiropractor, Dr. M.E.J., notes the Veteran reported no history of spinal complaints prior to a fall while on active duty in advanced infantry training. After that incident the Veteran was placed on light duty status. Dr. M.E.J. noted that spondylolisthesis can remain asymptomatic for a lifetime or it can and often does manifest with symptoms, i.e., hypo/hyper deep tendon reflexes, positive straight leg raises unilaterally or bilaterally, decreased range of motion due to muscle spasm and joint dysfunction. After the 3rd decade mild backache appears, either after severe trauma or after a series of lesser traumas such as repeated bending and lifting from occupation. The Veteran has endured repeated spinal surgeries, which leads to excessive amounts of scar tissue formation, which leads to loss of proper biomechanical function of the low back which is improbable to ever function correctly again. The initial onset of the Veteran's spinal issues was as likely as not to have been caused by the physical demands of the active duty training he incurred. The continued deterioration of biomechanical mobility and the need for spinal pain relief is as a result of the cause of the initial onset. An October 2012 addendum report by Dr. M.E.J. notes that review of the Veteran's records reveal there were no admission, previous diagnosis or any clinical evidence of spinal deformity, i.e., spondylolisthesis, prior to a fall which occurred while in the performance of required duties while on active duty in advance infancy training. After the diagnosis of said deformity, military duties were summarily changed in order to decrease the possibility of further deterioration of this "acquired" spondylolisthesis. Dr. M.E.J. notes further that it cannot be "assumed" that the Veteran's condition of spondylolisthesis is a "constitutional development" or congenital abnormality, which existed prior to induction to service. There is no documentation to support such an assumption. The documentation that exists would allow for every consideration that this is an "acquired" spondylolisthesis which resulted in his discharge from active duty. Current scientific research shows a congenital deformity such as this would usually manifest as symptomatic during adolescence. This is not the case for the Veteran. Most current literature supports development of a spondylolisthesis after trauma to the spinal column. The documentation reviewed supports this in the Veteran's case. Had it been present upon his enlistment to active duty military it would have been noted in his record at that time. The May 2014 VA medical opinion reveal that the Veteran's June 1971 service enlistment examination reports no back trouble of any kind and physical examination is listed as all normal. A September 1971 x-ray report shows grade I spondylolisthesis of the L5-S1 interspace. "History stated in auto accident...". I was noted that the Veteran's low back disability, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an inservice event, injury or illness. The rationale for the opinion was that after review of the Veteran's medical records, the thoracolumbosacral spine condition is less than likely permanently aggravated as a result of any event and/or condition that occurred and/or expressed inservice and/or within one year of discharge. The conclusion is supported by a preponderance of evidence from STRs to more recent treatment in the private sector and Veterans Hospital Administration facilities. In 1971, the STRs indicated there was less than factual history provided on the Veteran's medical records at enlistment and within a short period of time the complaints of low back pain without any specific injury prompted evaluation and orthopedic consultation which supported strict and limited physical profile, which were incompatible to military life. Neither the STRs nor the weather or geographic pattern surrounding Fort Sill, Oklahoma during September 1971, indicates that there would have been ice that the Veteran slipped on injuring his back while in training. The record shows that for the first three weeks after separating from service the Veteran worked as a roofer, which less than likely would have been possible if injury was present due to military service. The STRs appear to have restricted the Veteran from any injury to the back after the Veteran provided the history of a back condition for many years when his back began to have symptoms and evaluation with x-rays revealed the congenital back condition. The April 1989 VA examination indicated inconsistencies in the history and the physical examination with inclusion of the examiner's reflections on the type of boots and riding of a motorcycle by the Veteran. The reports by Dr. M.E.J. provide a speculatory discussion of the military physical activities of the Veteran which are not supported by the evidence of the STRs and the private medical evidence supporting occupational injuries to the back after leaving service are not included sufficiently or accurately in the chiropractic physician's rationale for aggravation of the back condition during service. There is less than likely a full understanding of the post service work injuries by the chiropractic physician during his consideration of the Veteran's back pathology. The chiropractic physician's discussion of the congenital condition worsened due to excessive physical training and gear during service is not consistent with the documentation of back evaluations in service or the brief time the Veteran was on active duty. It was thus found to be less than likely that chiropractic rationale is supported by the preponderance of treatment records, service records, x-ray reports during and shortly after service or Social Security Administration records. On September 2015 VA (fee basis) back (thoracolumbar spine) conditions examination, the Veteran reported that he was told he had spondylolisthesis at L5-S1 at age 18 while in the Army. He stated that he fell during a training exercise with full gear on and had an x-ray performed of his low back which identified spondylolisthesis of L5-S1. The military determined he was unfit for military service due to his back disorder. He had a spinal fusion procedure performed in 1973 which reportedly helped his symptoms for a short period of time. He has since undergone 6 more spinal surgeries and is living with constant low back pain. The diagnoses were degenerative arthritis of the spine, spinal fusion, spondylolisthesis and lumbar spine surgical fusion, laminectomy (times 6) with residual scars. The examiner opined that the Veteran's low back disability is less likely than not caused by his military service. Review of the Veteran's medical records indicate his low back disability existed prior to his military , and it is for this reason the Veteran has been denied service connection for his low back condition in the past. A thorough review of the Veteran's medical record followed by a medical opinion in May 2014 failed to establish service connection of the Veteran's low back disability. There is no new or further factual evidence on my review to contradict the May 2014 medical opinion. Admission notes dated in October 1971 mentions a 3 year history of low back pain. An examination in September 1971 notes a history of low back pain since childhood. Another medical treatment record dated in September 1971 notes pain in the lumbar region of the back of 5-year duration. In response to whether the Veteran's low back disorder is a congenital or development defect or a congenital disease, the examiner noted that although there can be both congenital and acquired forms of both spondylolysis and spondylolisthesis, there is sufficient evidence in the medical record to support that the condition existed prior to the Veteran's military. The Veteran's Grade I spondylolisthesis identified on x-ray in 1971 was more likely than not an incidental finding identifying a condition that predated his military service, given that the Veteran had reported a prior history of back pain as long as 5 years prior to his enlistment. The May 2014 VA examiner in her thorough examination of the Veteran's thoracolumbar condition reported that it was because of the potential for injury, not the occurrence of any injury during service that the Veteran was discharged to civilian life with x-ray identifying grade 1 spondylolisthesis at L5-S1. There was no superimposed injury during the Veteran's military service, but records indicate subsequent injuries requiring fusion and disc procedures beginning in 1973 following his discharge in 1971. The medical record indicates the Veteran has had multiple subsequent injuries to his back following his discharge from military service which have required seven spinal surgeries in total. Review of the medical record supports that these injuries which include lumbar disc conditions are due to heavy lifting/manual labor and less likely than not related to his period of active service. The examiner concluded that the Veteran's low back disability is congenital in nature. The Veteran's multiple postservice back injuries are more likely than not related to heavy lifting from the manual labor jobs he performed following his discharge from the military. In a January 2016 addendum report, the Veteran's chiropractor, Dr. M.E.J. noted that there exists no evidence of fact that would indicate that the Veteran's spinal condition is congenital. He stated "The audacity of the VA physician to decide the spondylolisthesis is congenital is borderline malpractice. It is a presumption that contradicts current literature to assume this diagnosis is correct. There is a statement made in the Supplemental Statement of Case, 12/09/15, that reads: 'VA, in determining all claims for benefits that have been reasonably raised by the filings and evidence, has applied the benefit-of-the-doubt and liberally & sympathetically reviewed all submissions, in writing from the veteran, as well as evidence of record.'" Dr. M.E.J. opined that the preponderance of evidence is, without doubt, in favor of the Veteran. It is far more likely than not that this disability is a result of and is a continued degenerative process of an acquired spondylolisthesis. The literature supports it. The research supports it, and the record supports it. Based on this, the Board determines that there exists no reasonable possibility that VA could show by clear and unmistakable evidence, such as with a VA examination opinion, that the Veteran's low back disability existed prior to service or that it was not aggravated by service. As a result, affording the Veteran the benefit of the doubt, the Board concludes that the Veteran was sound upon entrance to service and that his low back disability did not preexist service. Id.; 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Additionally, STRs in September 1971 the Veteran show a diagnosis of 1st degree spondylolisthesis at L5-S1, and the Veteran had been seen with chronic back pain. Moreover, a September 1971 physical therapy clinical record noted chronic back pain and x-rays revealed grade I spondylolisthesis of L5-S1 interspace, and the Veteran's involvement in an auto accident was noted. In October 1971 physical examination at the U.S. Army Hospital revealed left paraspinous spasms and a diagnosis of spondylolysis, L5-S1, 1st degree, symptomatic. Affording the Veteran the benefit of the doubt, he satisfies the third threshold element of service connection, a nexus between the claimed inservice disease or injury and the present disability. Id.; 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board notes that the only positive nexus opinion by a medical professional is from the Veteran's chiropractor, Dr. M.E.J., who stated that the initial onset of the Veteran's spinal issues are as likely as not to have been caused by the physical demands of the active duty training he incurred in service. The continued deterioration of biomechanical mobility and the need for spinal pain relief is as a result of the cause of the initial onset. The Board finds the opinion of Dr. M.E.J., probative and persuasive in determining whether there was a nexus between the Veteran's low back disability and service, because Dr. M.E.J. provided a detailed rationale that encompassed the Veteran's STRs, VA examination reports and opinions, private medical records, and lay statements. The Board acknowledges that the record contains VA examination reports and medical opinions against the Veteran's claim based essentially on the opinions of the examiners that the Veteran's low back disability is a congenital defect that existed prior to the his military service and was not aggravated during his period of service. While these opinions provide thorough reasoning for their conclusions, such reasoning remains debatable, and thus it is not shown by clear and unmistakable evidence that the Veteran had a preexisting low back disability when he entered the service. Resolving reasonable doubt in the Veteran's favor, the Board determines that it is at least as likely as not that the Veteran's low back disability is etiologically related to active service. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for a low back disability is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102. ORDER Entitlement to service connection for a low back disability is granted. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs