Citation Nr: 21075596 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 13-10 035 DATE: December 21, 2021 ORDER Service connection for scoliosis and degenerative arthritis of the spine and degenerative joint disease of the lumbosacral spine (spine arthritis) is granted. Service connection for residuals of surgical removal of a spinal cord tumor, to include incomplete paraplegia of the lower extremities (claimed as confinement in a wheelchair due to surgical removal of an intermedullary spinal cord tumor), including as due to syringomyelia, is denied. FINDINGS OF FACT 1. Scoliosis was not noted at service entrance. 2. The scoliosis is acquired and not congenital. 3. There are current diagnoses of scoliosis, lordosis, degenerative arthritis of the spine, degenerative joint disease of the lumbosacral spine, and syringomyelia. 4. The scoliosis had its onset during service. 5. Symptoms of spine arthritis (pain) were chronic during service and continuous since service separation. 6. In April 2003, 13 years after service, the Veteran had a laminectomy or laminotomy (back surgery) for a syrinx in the thoracic area of the back (due to syringomyelia). 7. Since the post-service back surgery, the Veteran has experienced incomplete paralysis and required the use of a wheelchair. 8. The syringomyelia developed from a spinal cord tumor that was noticed 13 years after service in 2002. 9. The Veteran was treated for syphilis while in the service with two weeks of penicillin by IV. 10. The course of treatment for the syphilis was adequate to cure the syphilis and did not leave any sequelae, including causing the syringomyelia. 11. The syringomyelia did not develop from the scoliosis. 12. The syringomyelia did not develop during service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for scoliosis and spine arthritis have been met. 38 U.S.C. §§ 1110, 1111, 1112, 1131, 1132, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for residuals of surgical removal of a spinal cord tumor, including as due to syringomyelia and to include incomplete paraplegia of the lower extremities, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1985 to April 1989. The Veteran also served in the Army Reserves from April 1989 to October 2004. The instant case has been before the Board of Veterans' Appeals (Board) previously. A July 2019 Board decision denied service connection. The Veteran filed a motion for reconsideration in September 2019, which was denied in November 2019. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and a September 2020 Joint Motion for Remand (JMR) vacated the Board decision for further proceedings consistent with the JMR. As detailed in the May 2021 remand, which is incorporated by reference, the Board found that an addendum VA medical opinion was necessary to be able to satisfy the requirements of the JMR and to review a new private nexus opinion that the Veteran had submitted subsequent to the JMR. As the addendum VA medical opinion has been procured and the RO has had the opportunity to review the additional opinion, there has been substantial compliance with the terms of the May 2021 remand and the case is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a September 2015 Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. Service Connection Legal Authority Direct Service Connection Service connection can be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Service connection generally requires competent 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 current disability. Chronic Disease Presumptive Service Connection Degenerative arthritis of the spine and degenerative joint disease of the lumbosacral spine are both a form of arthritis and are therefore a "chronic disease" under 38 C.F.R. § 3.309(a); accordingly, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For these reasons, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Id. For the showing of 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then, generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 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 evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). 1. Service Connection for Scoliosis and Arthritis is Granted. In this case, scoliosis was not "noted" at service entrance, and the evidence is at least in equipoise on the question of whether the scoliosis is a congenital defect or disease. In keeping with the JMR, the Board remanded for an opinion as to whether the scoliosis was developmental or acquired, as a prior VA opinion had used conflicting language on that question. The July 2021 VA Addendum Opinion writer opined that, based on the review of the records, the etiology of the scoliosis is most likely acquired. As an explanation, the VA examiner noted that the enlistment examination from 1985 noted a normal examination of the spine and is silent for scoliosis and that subsequent medical records reflected a diagnosis of scoliosis. Resolving reasonable doubt in the Veteran's favor, the Board finds that the scoliosis is a congenital "disease" and not defect, that is, the scoliosis is acquired scoliosis that is to be treated as any other disease for the purposes of the presumption of soundness at service entrance. See Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (stating that the only prerequisite for application of the presumption of soundness to a congenital disease is that the congenital disease not be "noted" on service entry examination). As the Veteran's spine is presumed to be sound at service entrance, the Board will analyze this case as one for direct service connection (38 C.F.R. § 3.303(a),(d)). The direct service connection question at issue regarding the scoliosis diagnosis is whether any back disability, including scoliosis, either began during service or is related to service. The competent evidence establishes the presence of scoliosis during service. A February 1988 radiological consultation for chest pain, which was during service, revealed mild dorsal scoliosis. Although the Veteran has at times stated that scoliosis did not exist during service, see September 2019 Motion for Reconsideration, the Board is finding that the Veteran is not competent in this case to diagnose the scoliosis so as to declare its date of onset. Scoliosis is not a condition that is observable through the use of one's senses. While any physical pain, including due to the scoliosis, is observable by the Veteran, the presence of pain is not sufficient to diagnose scoliosis, especially under the facts of this case where the Veteran has other back disorders that would be painful. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis"). In keeping with the presumption of soundness, see 38 U.S.C. §§ 1112, 1132, that a Veteran is presumed sound on entry except for those defects that are explicitly noted on the entrance examination, and addressing the direct service connection questions, the Board finds that the acquired scoliosis developed during service until the point that it was revealed in the February 1988 radiological consultation. Given this conclusion, the scoliosis was "incurred in" service; therefore, direct service connection pursuant to 38 C.F.R. § 3.303(a) and (d) is warranted. The evidence also shows diagnoses of degenerative arthritis of the spine and degenerative joint disease of the lumbosacral spine (spine arthritis). See March 2017 VA Examination. The present disability requirement is met regarding arthritis. After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise as to whether the symptoms of spine arthritis (namely, pain) were chronic in service and continuous since service separation. Service treatment records show complaints of back pain for a week on January 9, 1986, pain in mid back and lumbosacral area on January 17, 1986, and, in the report of medical history at service separation (March 1989), the Veteran answered "yes" to recurrent back pain. The examiner who reviewed the report of medical history at service separation did not explain the significance of the reported back pain. At the September 2015 Board hearing, the Veteran testified to back pain that existed frequently throughout service and stated that he did not always seek treatment for it. With regard to continuous post-service symptomatology, the Veteran entered the Reserves soon after service separation in April 1989, and there are multiple Reserves documents showing reports of back pain. See, e.g., March 1990 Service Treatment Record (lower backache for two weeks), July 1990 Service Treatment Record (right flank pain and lumbosacral area with radiating pain for four months), July 1990 Service Treatment Record (requesting an orthopedic consultation because patient was complaining of back pain). The Veteran also consistently reported recurrent back pain, such as in the January 1993 Report of Medical History. The Veteran had private consultations with a variety of providers, which eventually led to the location of the possible syrinx and the diagnosis of syringomyelia (discussed below), but the arthritis diagnosis is still a valid one per the March 2017 VA Examination. The Veteran visited VA for treatment within one year of service separation for back pain. There are also multiple lay statements by people who knew the Veteran in various capacities (e.g., coworker, fellow student, former girlfriend, neighbor) who all indicated that the Veteran had a slight limp and was bent over, and complained of back pain often until eventually he had surgery. Because symptoms of spine arthritis were chronic in service and continuous since service separation, presumptive service connection based on the chronic disease of arthritis (38 C.F.R. § 3.303(b)) is granted. 2. Service Connection for Residuals of Surgical Removal of a Spinal Cord Tumor, Including as Claimed to be Due to Syringomyelia and to Include Incomplete Paraplegia of the Lower Extremities, is Denied. The Veteran seeks service connection for being confined to a wheelchair due to surgical removal of an intermedullary spinal cord tumor. In April 2003, 13 years after service separation, the Veteran had a laminectomy or laminotomy (back surgery) for a syrinx in the thoracic area of the back. Since the post-service back surgery, the Veteran has experienced in complete paralysis and required the use of a wheelchair. The primary diagnosis that led to the surgery was syringomyelia. Although at times the Veteran has questioned whether the syringomyelia was the accurate diagnosis, the syringomyelia is listed throughout the treatment records by various doctors as the diagnosis, including, but not limited to, interpretation of a January 2003 MRI. The main question before the Board in this case is the etiology of the syringomyelia. The Veteran has provided three private opinions that each give a different etiology and that do not attempt to reconcile their position with that of any other opinion writer. Two VA examiners have provided opinions that are consistent and the second (most recent) VA Addendum Opinion addresses the private opinions. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence supports the conclusions that the syringomyelia and its sequelae developed from a spinal cord tumor that was noticed in 2002 and did not develop during service, did not develop from the scoliosis, and did not develop from an inadequate treatment for syphilis. In the July 2021 VA Addendum opinion, the VA examiner provided an exhaustive listing of records that had been reviewed and considered, including those listed in the prior JMR as needing to be considered. The VA examiner also sought input from a staff infectious disease physician about the adequacy of syphilis treatment. The July 2021 VA examiner opined that based on the review of the record and medical literature, the etiology of the Veteran's syringomyelia is most likely the spinal cord tumor diagnosed on MRI in 2002. The July 2021 VA examiner noted that syringomyelia can have several possible causes, including Chiari malformation (congenital), spinal cord injuries, spinal cord tumors, and damage caused by inflammation in and around the spinal cord. The July 2021 VA examiner's opinion is consistent with the March 2017 VA opinion that stated that syringomyelia was diagnosed in 2002 and although the condition would take several years to develop, it would not trace back to service. Regarding the suggestion that the syringomyelia was due to inadequately treated syphilis, the July 2021 VA examiner noted that two weeks of IV penicillin was deemed adequate. The July 2021 VA examiner noted Dr. C.N.B.'s opinion that inadequate treatment for syphilis led to tabes dorsalis-neurosyphilis-tertiary syphilis and led to the syrinx. The July 2021 VA examiner noted that the Hospital Discharge Summary from March 1988 was reviewed because it showed admission for evaluation and treatment of uveitis and that secondary or latent syphilis was suspected. In consultation with infectious disease providers, 2 million units of IV penicillin were administered every 4 hours for 2 weeks. The July 2021 VA examiner acknowledged that syringomyelia has been associated with post-infectious processes; however, tabes dorsalis is a late manifestation of neurosyphilis and is an extremely uncommon condition in the post-antibiotic era. An association between syringomyelia and any form of neurosyphilis is uncertain, at best, and has only been discussed in the literature with meningitis presentation of neurosyphilis, not tabes dorsalis. The passing statement about the iritis/uveitis possibly being due to inadequately treated syphilis is no longer pertinent to this theory, as the evidence demonstrates adequate treatment of the syphilis during service. Regarding the suggestion that the syringomyelia was caused by scoliosis, the July 2021 VA examiner reiterated that the Veteran had a spinal cord tumor diagnosed in 2002, which is the most likely etiology of the syringomyelia. The private opinion writer opined that the symptomatology followed the typical course of development of a tumor located just below the point of maximum cord deformity, with the scoliosis leading to syringomyelia. The July 2021 VA examiner noted that mild thoracic scoliosis was diagnosed several years prior to the diagnosis of syringomyelia and is less likely related. The Veteran expressed that he was not satisfied with this explanation in a September 2021 Correspondence because the July 2021 VA examiner did not provide a timeline by which the tumor could have developed. The July 2021 VA examiner was not required to provide such a timeline. The question before the VA examiner was the etiology of the syringomyelia, which was deemed to be the spinal cord tumor that was noticed in 2002. Regarding the suggestion that the syringomyelia had its onset in service, there are service treatment (medical) records related to back pain, as noted above in the section on spine arthritis. Physician Assistant S.C. suggested that the Veteran had syringomyelia during service and that the scoliosis was evidence of the syringomyelia, rather than the other way around. Physician Assistant S.C. pointed to ten factors that are signs of syringomyelia per the National Institute of Neurologic Disorders, but the symptoms are quite generic and apply to many different possible disorders, such as pain, headaches, imbalance, and problems with sexual function. While the Veteran may have six out of the ten listed symptoms, that does not prove that the Veteran was demonstrating early warning signs of syringomyelia as opposed to another neurological disorder or even separate symptoms from separate bodily systems. In conclusion, the evidence demonstrates that the back surgery for removal of spinal cord tumor occurred because of the syringomyelia, which is not connected to service. The weight of the evidence is against finding that the removal of spinal cord tumor surgery was a result of syphilis, as a result of scoliosis, or that the spinal cord tumor was directly incurred in service. For these reason, service connection on a direct basis (38 C.F.R. § 3.303(a)) must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.