Citation Nr: 1751747	
Decision Date: 11/13/17    Archive Date: 11/22/17

DOCKET NO.  10-26 103	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for a back disability, to include as secondary to service-connected fibromyalgia.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

A. Vieux, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Air Force from August 2001 to July 2007.

This matter comes to the Board of Veterans Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio   

The Veteran testified before the undersigned in February 2016.  

In April 2016 and March 2017, the Board remanded the appeal for further evidentiary development.


FINDINGS OF FACT

1.  The Veteran's partial sacralization of L5 is a congenital defect not subject to superimposed disease or injury during service resulting in additional disability.

2.  The Veteran's adolescent idiopathic scoliosis is a congenital disease that pre-existing service and was not aggravated thereby.

3.  The Veteran's segmental dysfunction of the cervicothoracic spine is the result of her service-connected fibromyalgia.


CONCLUSION OF LAW

The criteria for entitlement to service connection for segmental dysfunction of the cervicothoracic spine secondary to service-connected fibromyalgia are met.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran asserts that she was diagnosed with scoliosis prior to service, but had no issues with it until she was in service in 2004.  She asserts that her duties as a truck driver in service aggravated her back condition.  In the alternative, she asserts that her back condition is secondary to her service-connected fibromyalgia.  See June 2010 VA Form 21-4138.  

The most probative evidence of record demonstrates three back disabilities diagnosed during the appeal period, as well as a diagnosis of myofascial pain syndrome related to diagnosed scoliosis.  See April 2017 VA examiner's opinion.  To the extent the record reflects a diagnosis of partial sacralization of L5, the competent evidence of record indicates that this condition is a congenital defect not subject to superimposed disease or injury resulting in additional disability during service, based on interpreted X-ray and MRI studies and the examiner's finding that this area of the spine is not subject to movement.  See April 2017 VA examiner's opinion.  Similarly, the competent evidence of record reflects that the Veteran's adolescent idiopathic scoliosis is a congenital disease that pre-existed service and was not aggravated thereby, based on the rationale that her Cobb angle had only altered by one degree between ages of 13 and 33 (she separated from service at age 20).  See June 2016 VA examination report.  There is no competent evidence to the contrary.  In this regard, the Veteran does not have the appropriate expertise to assess the nature and etiology of her back disabilities.  Accordingly, service connection is not available for partial sacralization of L5 or scoliosis.  38 U.S.C. § 1153; 38 C.F.R. §§ 3.303(c), 3.306; 4.9; VAOPCGPREC 82-90, 56 Fed. Reg. 45,711 (1990).

However, the Veteran also has a current diagnosis of segmental dysfunction of the cervicothoracic spine.  See January 2010 VA treatment record.  Further, she is service-connected for fibromyalgia.  Accordingly, the first two elements of secondary service connection are established for this disability.  38 C.F.R. § 3.310.

Regarding the final element of service connection, nexus, in favor of the claim is the April 2017 VA examiner's opinion indicating that the Veteran's segmental dysfunction of cervicothoracic spine is more likely a clinical manifestation of her service-connected fibromyalgia.  The examiner stated that segmental dysfunction of cervicothoracic spine is a diagnosis most often given by a chiropractor prior to spine manipulation when a patient complains of neck and upper back pain.  Further, the examiner stated that as this is related to her neck and upper back, it is less likely due to her service or diagnosed lumbar radiculitis or low back pain and is more likely a manifestation of her service-connected fibromyalgia.  Accordingly, all elements are satisfied, and service connection for segmental dysfunction of cervicothoracic spine secondary to service-connected fibromyalgia is established.  38 C.F.R. § 3.310.


ORDER

Service connection for segmental dysfunction of cervicothoracic spine secondary to service-connected fibromyalgia is granted.



____________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs