Citation Nr: 1753679 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 12-02 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether the rating decision of January 7, 1982 contained clear and unmistakable error by denying the claim for service connection for spondylolisthesis at L5-S1. 2. Entitlement to service connection for residuals of L4-S1 laminectomy and posterior fusion. 3. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Colin E. Kemmerly, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from November 1980 to October 1981. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A January 2010 rating decision reopened and denied the claim for service connection for a post-operative lumbar spine disability on the merits, and an October 2012 rating decision denied a total disability rating based on individual unemployability (TDIU). In December 2014, the Veteran testified at a Board hearing via video conference before the undersigned. He also testified at a formal RO hearing in November 2011 before a decision review officer. Transcripts of the testimony at both hearings are in the claims file. In a December 2015 decision, the Board denied the Veteran's motion alleging clear and unmistakable error (CUE) in the January 7, 1982 rating decision that denied the claim for service connection for spondylolisthesis at L5-S1; reopened and granted the claim for service connection for Grade I spondylolisthesis at L5-S1; denied the claim for service connection for post-operative residuals of L4-S1 laminectomy and posterior fusion; and remanded the claim for a TDIU. The Veteran appealed to the United States Court of Appeals for Veterans Claims. Pursuant to a joint motion for partial remand, in a May 2017 Order, the Court vacated the portions of that Board decision which denied the CUE motion and claim for service connection for post-operative residuals of L4-S1 laminectomy and posterior fusion, and remanded the appeal for readjudication in accordance with the joint motion. The Court dismissed the appeal as to the remaining issues. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a January 1982 rating decision, the RO denied the Veteran's claim for service connection for a low back disorder; the Veteran was notified of the decision and of his appellate rights, and initiated an appeal, but he did not file a timely substantive appeal following a responsive statement of the case. 2. The January 1982 rating decision indicates that the rating board in fact applied the presumption of soundness; and the issue of whether the evidence before the RO at that time substantiated the claim for service connection for a low back disorder is one that involved a weighing of the evidence and on which reasonable minds could differ. 3. Residuals of L4-S1 laminectomy and posterior fusion are proximately due to or the result of the service-connected Grade I spondylolisthesis at L5-S1. CONCLUSIONS OF LAW 1. The January 1982 rating decision that denied the claim for service connection for a low back disorder is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2017). 2. The January 1982 rating decision did not contain clear and unmistakable error by denying the claim for service connection for spondylolisthesis at L5-S1. 38 U.S.C. §§ 5109A, 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 3.105 (2017); 38 C.F.R. §§ 3.303, 3.304 (1982). 3. Resolving the benefit of the doubt in the Veteran's favor, the criteria for service connection for residuals of L4-S1 laminectomy and posterior fusion, as secondary to the service-connected Grade I spondylolisthesis at L5-S1, have been met. 38 U.S.C. §§ 1131, 5107 (West 2012); 38 C.F.R. § 3.102, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA's duties to notify and assist do not apply to CUE claims. Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Given the favorable decision on the claim for service connection for the residuals of L4-S1 laminectomy and posterior fusion, no further discussion of the duties to notify and assist is needed. CUE If the evidence establishes CUE in a prior RO rating decision, the decision will be reversed or amended. 38 C.F.R. §§ 3.104(a), 3.105(a) (2017). In determining whether a prior determination involves CUE, the United States Court of Appeals for Veterans Claims has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Board notes that a claim of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). CUE is a very specific and rare kind of "error." It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Generally, a finding of CUE requires that the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot, ipso facto, be clear and unmistakable. Fugo, 6 Vet. App. at 43-44 (citing Russell, 3 Vet. App. at 313-14). In this case, the Veteran asserts that in January 1982 the rating board failed to apply the presumption of soundness when it denied the claim for service connection for a low back disorder. For the reasons set forth below, the Board finds that he has not carried his heavy burden of proving CUE in the January 1982 rating decision. The basic requirements for entitlement to service connection were the same in 1982 as they are today. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (West 1982); 38 C.F.R. § 3.303 (1982). As concerns the presumption of soundness, the applicable requirements in 1982 provided that a veteran will be considered to have been in sound medical condition upon entrance into service, except as to defects, infirmities, or disorders noted at entrance, or where clear and unmistakable (undebatable) evidence demonstrates that an injury or disease existed prior to service, and was not aggravated during service. 38 U.S.C. §§ 311, 337 (West 1982); 38 C.F.R. § 3.304 (1982). A preexisting disease or injury will be considered to have been aggravated by service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. Clear and unmistakable evidence (undebatable) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during wartime service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 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. § 353 (West 1982); 38 C.F.R. §§ 3.303, 3.306 (1982). Congenital or developmental defects are not diseases within the meaning of applicable legislation providing compensable benefits. 38 C.F.R. § 3.303(c) (1982). Below is a summary of the evidence cited by the rating board in the January 1982 rating decision. A July 1981 Medical Evaluation Board (MEB) report reflects that, in March 1981, while lifting weights, a barbell rack with 100+ pounds of barbells on it, collapsed onto the Veteran's low back. The service treatment records note that the Veteran reported multiple athletic injuries to his extremities and low back prior to service for which he had been followed since 1977. He reported that he had experienced frequent low back pain in basic training which was exacerbated by exercise and cold weather. He reported further that his symptoms had improved in the warmer climate of California, where he was assigned after basic training. X-rays of the lumbosacral spine showed Grade I spondylolisthesis but no fractures or decreased joint space. The MEB report cited an April 1981 bone scan which was interpreted as negative for any increased activity in the lumbosacral spine. The interpretation was that, since the spondylolisthesis was not hot, the lesion was not acute and, hence, existed prior to service. In May 1981, the Veteran was transferred for further evaluation and treatment to the neurosurgery service at Letterman Army Medical Center. There a lumbar myelogram was conducted and interpreted as showing a Grade I spondylolisthesis of L5 on S1. It was noted that on flexion-extension and neutral positions, there was no evidence of definite motion of L5 with respect to S1 and the Grade 1 spondylolisthesis remained the same. The impression was of a Grade I spondylolisthesis, L5 on S1, without evidence of a herniated disc. The July 1981 Report of Medical Examination for MEB notes that there were no objective findings other than the Grade I spondylolisthesis at L5-S1. An August 1981 Physical Evaluation Board Proceeding (PEB) report reflects that the Veteran's current disability factor due to the low back disability was 10 percent and preexisting disability factor was 10 percent, resulting in a net rating of 0 percent due to service aggravation. A December 1981 VA examination report reflects that the Veteran denied any back problems prior to entering active service, and that he reported chronic low back pain that radiated into the left lower extremity. Physical examination revealed forward flexion to 70 degrees, backwards extension to 20 degrees, and rotation and lateral motion to 30 degrees. The examiner noted discomfort on all motion. There was diffuse mild tenderness of the lumbosacral area but no spasm. Straight leg raising test was negative. Gait and heel-toe walking were normal. The examiner noted that the Veteran exhibited good propulsive force bilaterally. Deep tendon reflexes were physiologic, and no paresthesias or muscle weakness was noted. Both thighs measured 16 inches in circumference, and both calves measured 15.5 inches. The December 1981 X-ray report reflects that the X-rays were interpreted as having shown no evidence of bony fracture or spondylolysis. The radiologist opined that, although an apparent spondylolisthesis of L5 over S1 could be interpreted, the appearance most likely was normal, and the apparent subluxation was artifactual and a function of the hyperacute angulation of the sacrum and the lumbar spine. While not specifically cited by the rating board, a September 1981 revised PEB report reflects that the Veteran's preexisting low back disability factor was changed to 0 percent, which resulted in a net rating of 10 percent due to service aggravation. The January 1982 rating decision reflects that the rating board synopsized the July 1981 MEB report in the Narrative. It noted as follows: MEB examination on 7-7-81 showed subjective complaints of low back pain with radiation to the left leg and numbness of the left leg with no objective findings. Motor strength was questionably decreased on the left and there were questionable sensory deficits of the left heel. Spondylolisthesis of L5-S1 was reported. The veteran continued to have somatic complaints referable to various systems, in addition to his low back and left leg complaints. The diagnosis was chronic low back pain secondary to L5-S1 spondylolisthesis and spondylolysis, EPTS. Evaluation Board report showed pre-service disability 10% and evaluation at separation 10%, with severance pay if otherwise qualified. After noting the VA examination findings as set forth in the December 1981 examination report, the rating board determined, "[a]ggravation of the veteran's back condition was not shown during military service. Findings on VAE were essentially normal." The Veteran has asserted that the rating board misread the findings of the bone scan and myelogram. The Board rejects that assertion, as the rating board, albeit via summarization of the findings, noted the July 1981 MEB report which contained the results of both the bone scan and myelogram. The Veteran has also asserted that the January 1982 rating board erroneously concluded that his L5-S1 spondylolisthesis and spondylolysis were congenital conditions which are not diseases or injuries subject to service connection. However, the Board notes that neither the July 1981 MEB report nor the January 1982 rating decision suggests that the Veteran's low back disorder was congenital. The implicit conclusion of both was that the L5-S1 spondylolisthesis and spondylolysis were due to the Veteran's reported multiple pre-service injuries. The Veteran has asserted that the rating board did not apply the presumption of soundness. As has been recognized by the Board and acknowledged by reviewing courts, the Reasons and Bases, or Narrative, in rating decisions issued prior to the 2000 enactment of the Veterans Claims Assistance Act reflect far less detail than current day rating decisions. See generally Reeves v. Shinseki, 682 F.3d 988 (2012). Thus, the Board must assess the Veteran's claim of CUE within the bounds of that reality. With that in mind, the Board finds that the four corners of the January 1982 rating decision reflect that the rating board did in fact apply the presumption of soundness. The rating board specifically found that the "[s]ervice induction examination shows no evidence of a back condition." That stated finding indicates the rating board's application of the presumption of soundness. Further, the rating board specifically referenced the July 1981 PEB finding regarding service aggravation and determined that the L5-S1 spondylolisthesis and spondylolysis existed prior to service and were not aggravated by service. The fact that the rating board did not specifically cite to the presumption of soundness, or use the terms clear and unmistakable, is not an indication that the rating board did not in fact apply the correct standard. The Board also notes that the July 1982 rating decision reflects that the rating board included a physician who was a signatory on the rating decision. Hence, contrary to the current state of the law, the law in effect in 1982 allowed the exercise of medical judgment by VA. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The rating board's exercise of medical judgment did not constitute error. See MacKlem v. Shinseki, 24 Vet. App. 63, 70 (2010) (acknowledging RO rating boards included physicians in pre-Colvin-era decisions and permissibly relied on the medical judgment offered by the medical member of the rating board who participated in the determination); see also Bowyer v. Brown, 7 Vet. App. 549, 552-53 (1995) (holding that the Board's position was substantially justified in a pre-Colvin decision in relying on its own medical judgment). Given the above, the record indicates that the January 1982 rating board found that the presumption of soundness had in fact been rebutted by the evidence before it. All of the medical evidence before the rating board pointed to a preexisting low back disorder. Where the rating board departed from the findings of the MEB was on the question of service aggravation. However, the Board observes that the MEB findings were not binding on the rating board. The reasonable inference is that the rating board accorded more weight to the December 1981 VA examination report, to include the X-ray examination report, wherein the radiologist opined that the Veteran did not have a true spondylolisthesis at L5-S1. That was in effect a weighing of the evidence which the rating board was clearly authorized to perform. The fact that the Veteran argues that the result should have been different does not constitute CUE. The Board must reach the same finding as concerns the ultimate conclusion of the January 1982 rating board: the Veteran's argument that the evidence before the rating board in 1982 did not clearly and unmistakably show a preexisting disorder and the absence of in-service aggravation is no more than an argument that the evidence should be reweighed. This is insufficient to constitute CUE. The Board notes that the rating board did not cite to the revised September 1981 PEB report showing that the Veteran's preexisting low back disability factor was 0 percent rather than 10 percent. However, the Board reiterates that such a finding was not binding on the rating board. Moreover, the rating board's accordance of more weight to the subsequent December 1981 VA examination report, which did not find a true spondylolisthesis at L5-S1, may have resulted in the same conclusion that the Veteran's low back disorder was not aggravated by service. Thus, even if the rating board erred in overlooking the revised PEB report, it is not absolutely clear that a different result would have ensued. Thus, the error is not clear and unmistakable. In light of all of the above, the Board finds that the evidence of record shows that the January 1982 rating decision indicates that the rating board in fact applied the presumption of soundness; and the issue of whether the evidence before the RO at that time substantiated the claim for service connection for a low back disorder is one that involved a weighing of the evidence and on which reasonable minds could differ. The fact that others may disagree with the way the rating board weighed the evidence does not constitute CUE. Hence, the Board denies the motion to revise the January 1982 rating decision on the basis of CUE. 38 C.F.R. § 3.105(a). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection also may be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2017). Service connection is permitted not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In this case, the Veteran essentially asserts that he underwent L4-S1 laminectomy and posterior fusion for a low back disorder that was incurred in service. In a December 1983 letter, the Veteran asserted that he had been in pain since the 1981 in-service injury. In a March 1985 letter, a private physician noted the Veteran's history of low back problems as well as a current disability of the low back with radiculopathy of the left lower extremity. Private treatment records related to a Workers' Compensation claim and application for Social Security benefits reflect that the Veteran sustained two significant work-related injuries in 1998. In May 1998, he was pinned against a parked van by an 18-wheeler; in September 1998, he was involved in a motor vehicle accident. Records of a private spine center dated in November 1999 note that the Veteran reported a history of the 1981 in-service injury, and that he was told at that time that he had Grade I spondylolisthesis. He reported further that he had been treated conservatively and his symptoms were controlled well. Lumbar spine X-rays were read as demonstrating what appeared to be spondylolisthesis of L5 upon S1 and perhaps some retrolisthesis of L4 upon L5. A later November MRI was interpreted as showing Grade I-II spondylolisthesis at L5, S1 with considerable disc space degeneration and narrowing, severe foraminal stenosis on the left, and moderate to marked stenosis on the right. In a February 2000 report, Dr. T. noted the Veteran's report that following his discharge from active service his low back was not disabling until after the 1998 accidents. Dr. T. opined that, although the Veteran had a significant condition of the lumbosacral spine prior to the May 1998 accident, the accident significantly aggravated or accelerated the condition. Dr. T. then recommended a L4-S1 posterior fusion. In a March 2000 addendum, Dr. T. stated that the need for a fusion is due in part to the preexisting spondylolisthesis at L5-S1 and in part to the May 1998 work-related injury that aggravated the preexisting condition. At a December 2009 VA examination, the Veteran reported that between his discharge from active service and the May 1998 crush injury he sought treatment from several providers, to include chiropractors, osteopaths, orthopedists, and massage specialists. He also reported self-treating with Ben-Gay, ice massages, and aspirin. The Veteran reported that intermittent fecal incontinence started a few weeks after the 1981 in-service injury and it worsened through the 1990s, and was worse at the time of the examination. The examiner opined that the Veteran's current symptoms were not caused by or a result of the spondylolysis or grade I spondylolisthesis that existed in 1981 but were due to injury and degeneration that occurred after military service. In a March 2015 medical opinion, a Veterans Health Administration spine surgeon stated that the Veteran's preexisting spondylolisthesis at L5-S1 was not aggravated by active service and that the symptoms that developed later are commonly seen as part of the natural history of spondylolisthesis with progressive degeneration and subsequent nerve compression. At the outset, the Board notes that service connection for Grade I spondylolisthesis at L5-S1 has been established as causally connected to service. The question now is whether the Veteran's L4-S1 laminectomy and posterior fusion was needed to treat the service-connected disability. In that regard, the Board notes that symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Given the evidence, the record shows that the Veteran has had symptoms of his spondylolisthesis at L5-S1 since discharge from active service. His December 1983 letter shows that he has had low back pain since service. The March 1985 letter from the private physician shows that he continued to have low back problems with radiculopathy of the left lower extremity. Then he sustained two work-related injuries in 1998, the first one in May 1998 being more significant with respect to the low back. While records following the May 1998 injury attribute the bulk of his low back disability to that injury, they still show that he had problems prior to the injury. While the November 1999 medical record notes that the symptoms from the 1981 in-service injury were well-controlled and only needed conservative treatment, the record nevertheless indicates a continuity of symptoms since service. The later November MRI shows a progressive worsening of the Grade I spondylolisthesis at L5-S1, then being characterized as Grade I-II spondylolisthesis with additional abnormal findings. While the Veteran reported to Dr. T. that his low back was not disabling until after the 1998 accidents, that statement can be construed as merely establishing an increase in disability, not showing the absence of disability prior to the accidents. Dr. T. also noted that the Veteran had a significant lumbosacral spine disorder prior to the May 1998 accident. Moreover, Dr. T. opined that the fusion was needed not only because of the May 1998 work-related injury but also because of the preexisting spondylolisthesis at L5-S1. While the December 2009 VA examiner opined that the Veteran's current symptoms were not a result of the spondylolysis or grade I spondylolisthesis that existed in 1981 but rather the injury that occurred after service, the examiner also attributed the symptoms to degeneration that occurred after service. In that regard, the March 2015 opinion from the VA spine surgeon noted that the Veteran later developed symptoms that are commonly seen as part of the natural progression of spondylolisthesis with degeneration and nerve compression. As such, both the VA examiner and spine surgeon attributed the Veteran's symptoms at the time of the L4-S1 laminectomy and posterior fusion to the progression of his spondylolisthesis at L5-S1, supporting Dr. T.'s opinion that the fusion was needed due in part to the spondylolisthesis at L5-S1. In light of the above, and resolving the benefit of the doubt in the Veteran's favor, the question of whether his L4-S1 laminectomy and posterior fusion was needed to treat his service-connected Grade I spondylolisthesis at L5-S1 may be answered in the affirmative. 38 U.S.C. § 5107(b) (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the residuals of L4-S1 laminectomy and posterior fusion are proximately due to or the result of the service-connected Grade I spondylolisthesis at L5-S1. Accordingly, service connection for residuals of L4-S1 laminectomy and posterior fusion is warranted. ORDER The motion alleging CUE in the January 7, 1982 rating decision that denied the claim for service connection for spondylolisthesis at L5-S1 is denied Service connection for residuals of L4-S1 laminectomy and posterior fusion is granted, subject to the provisions governing the award of monetary benefits. REMAND The Board notes that the case returned from the Court and the AOJ has not had an opportunity to readjudicate the claim for a TDIU. However, in light of the Board's grant of service connection for the residuals of L4-S1 laminectomy and posterior fusion, further action on the part of the AOJ, namely the assignment of a disability rating, is needed prior to readjudicating the claim for a TDIU. Accordingly, the case is REMANDED for the following action: After assigning a disability rating for the newly service-connected residuals of L4-S1 laminectomy and posterior fusion, readjudicate the claim for a TDIU. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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 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. §§ 5109B, 7112 (West 2012). ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs