Citation Nr: 21006415 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-13 668 DATE: February 4, 2021 ORDER Entitlement to service connection for residuals of status post stress fracture of inferior pubic ramus is granted. Entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for scoliosis is granted. FINDINGS OF FACT 1. The evidence is evenly balanced as to whether the Veteran has a current disability as a result of the stress fracture of the inferior pubic ramus that she incurred while in service. 2. The evidence is evenly balanced as to whether the Veteran has experienced chronic back pain related to her current lumbar spine disability since her separation from service. 3. The evidence is evenly balanced as to whether the Veteran’s scoliosis is proximately due to her service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the criteria for service connection for residual of status post stress fracture of the inferior pubic ramus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for lumbar spine disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. With resolution of reasonable doubt in the Veteran’s favor, the criteria for service connection for scoliosis as secondary to lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1995 to August 1995. The Veteran testified before the undersigned Veterans Law Judge during an April 2018 videoconference hearing; a transcript is of record. The Board previously remanded the issue for further development in May 2018. The case has now been returned to the Board for appellate review. Service Connection Service connection may 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). To establish entitlement to service-connected compensation benefits, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id; see also 38 C.F.R. § 3.310 (b). In addition, for veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In its determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Residuals of status post stress fracture of inferior pubic ramus The Veteran maintains that she suffers from residuals of in-service stress fracture of the inferior pubic ramus. Her service treatment record documents that she sustained stress fracture in the pelvic bone during the basic training and sought treatment for left hip pain in February 1995. About two weeks after the injury, she fell on ice re-injuring the left hip. Subsequent to treatment and physical therapy, her left hip condition improved briefly, and an imaging study showed signs of healing. However, the pain returned. Eventually, the Veteran underwent an examination by the medical evaluation board in May 1995, which concluded that it was highly unlikely that she would be able in the foreseeable future to complete the basic training due to the stress fracture, which often became chronic and were “extremely difficult to manage once an individual demonstrate[d] propensity for these types of fractures.” She was honorably discharged from the military service shortly after the examination. Most recently, the Veteran underwent a VA examination in September 2020. At the examination, the Veteran reported flareups of the left hip that occur monthly due to overuse. Although the examiner did not report or estimate additional functional loss due to pain or during flareups as a result of the hip disability, the examiner found that there was objective evidence of localized tenderness or pain on palpation in the interior thigh/hip (lower pelvis). The examiner further determined that the pain is directly related to the in-service stress fracture of the pelvic bone. Moreover, the examiner reported that the status post stress fracture of the pelvic bone impacted the Veteran’s ability to perform occupational task, for she could not run, squat, have prolonged standing, or sitting due to the disability. The x ray imaging of the left hip showed no evidence for fracture or other significant bone, joint, or soft tissue abnormality. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran has pain in the left hip that causes functional loss impacting her ability to work. Saunders v. Wilkie, 886 F.3d, 1356, 1368 (Fed. Cir. 2018). The evidence shows that this pain is directly related by the in-service stress fracture of the pelvic bone. In sum, the Board finds that the evidence presently before the Board is sufficient to grant the appeal. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a residual of status post stress fracture of inferior pubic ramus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Lumbar spine disability The Veteran maintains that in addition to the hip disability, her current lumbar spine disability is also related to the in-service stress fracture of the pelvic bone and/or multiple falls she had due to the initial injury. See e.g., May 2019 statement in support of claim. The Veteran has a current diagnosis of degenerative arthritis of the spine and intervertebral disc syndrome, as reflected in an October 2019 VA examination. Her service treatment records indicate that she sought treatment for back pain in April 1995. A May 1995 service treatment record shows that she complained about back pain for duration of 3 days. Tenderness to palpation to muscular lower back was noted, and the clinician noted she had mild low back pain. A review of the post-service records indicate that the Veteran sought treatment for acute back pain and spasm in February 1997. It appears that the Veteran underwent a surgery for a herniated disc in March 1997. See, e.g., February 1997 treatment records; January 1998 treatment record (noting that the Veteran had back surgery for herniated lumbar disc in the previous year). Continuity of treatment and symptomatology for her lumbar spine disability since the 1997 surgery is well documented in the evidence of records. The Veteran testified during the April 2018 Board hearing that she started being seen for her low back pain in 1997. She also stated that “there had been no trauma to [her] back in Germany, only the trauma that [she] experienced while in basic training” and that “[her] back pain continued even after surgery but became a part of [her] everyday life.” May 2019 Statement in Support of Claim. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s current lumbar spine disability more likely than not began in service or otherwise is related to her in-service injury. Even though her initial back pain was not noted as chronic in service, both medical and lay evidence sufficiently supports a finding of continuity of symptomatology since the initial complaint of the back pain in April 1995 to the 1997 surgery for herniated disc and then from the surgery to her current lumbar spine disability. In sum, the Board finds that the evidence presently before the Board is sufficient to grant the appeal. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a lumbar spine disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Scoliosis The Veteran maintains that she has scoliosis that is related to the in-service pelvic bone fracture. See, e.g., May 2009 VA Form 21-526. Her service treatment record does not indicate that she was found to have scoliosis while in service. As for the post-service period, a March 2009 radiology consultation report indicates that the Veteran has scoliosis and tilting of the spine. There was 11 degrees from the top of L1 to the top of L5, and the spine was also tilted towards the left. The radiologist noted although the hips were barely visible on the AP view, appearance suggested a leg length discrepancy on the order of 6 mm. An August 2009 VA examination reflects a finding of the same leg length bilaterally and no objective findings to support a diagnosis of scoliosis. A November 2019 VA examination reflects a diagnosis of scoliosis. Thus, the evidence preponderates for finding that the Veteran has a current diagnosis of scoliosis, and the issue before the Board is whether the scoliosis is etiologically related to her service, to include as secondary to her service-connected disability. The Board finds that the evidence is evenly balanced as to whether the Veteran’s scoliosis is etiologically related to her service-connected lumber spine disability. There is no medical opinion of record directly connecting these two conditions. However, it appears well known in the medical field that one of the causes for scoliosis is injuries or infections of the spine. See Mayo Clinic, Scoliosis, http://www.mayoclinic.org/diseases-conditions/scoliosis/symptoms-causes/syc-20350716. Also, a clinical trial study, titled “Gait and Balance in Thoracolumbar Spine Deformity,” states: Although the etiology is unclear, degenerative adult scoliosis is associated with progressive and asymmetric degeneration of the disc and facet joints, which typically lead to stenosis. Texas Back Institute, Gait and Balance in Thoracolumbar Spinal Deformity, ClinicalTrials.gov at NIH U.S. National Library of Medicine (May 4, 2016), http://clinicaltrials.gov/ct2/show/NCT02761265. No evidence or medical opinion in the claims file contradicts with this well-established knowledge in the medical field. The Board notes that a November 2019 VA medical opinion states that the scoliosis of the lumbar spine is less likely than not incurred from stress fracture of the inferior pubic ramus. The rationale relies on a finding of normal gait, which, the examiner opines, indicates that the current lumbar spine condition is not the result of compensation for the hip issue. This opinion does not evaluate a nexus between scoliosis and the now service-connected lumbar spine disability. Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran has a current diagnosis of scoliosis that is proximately due to her service-connected lumbar spine disability. In sum, the Board finds that the evidence presently before the Board is sufficient to grant the appeal. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for scoliosis as secondary to lumbar spine disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Taylor, 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.