Citation Nr: 9830124 Decision Date: 10/08/98 Archive Date: 10/21/98 DOCKET NO. 98-05 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for residuals of compression fractures of the twelfth thoracic (T12) and first, third, and fourth lumbar (L1, L3, L4) vertebrae, and spinal stenosis at the fourth and fifth lumbar vertebrae (L4- 5), claimed as secondary to the service-connected residuals of a compression fracture of the second lumbar vertebra (L2). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from August 1965 to September 1967. This matter comes before the Board of Veteran's Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Following a Board remand in February 1996, a Board decision in April 1997 granted an increase in the veteran’s only service-connected disability of residuals of a compression fracture of L2 from 20 percent to 50 percent, encompassing severe limitation of motion of the lumbosacral spine, at 40 percent, and the addition of 10 percent for a demonstrable vertebral deformity of L2. The April 1997 Board decision noted, at page 5, that the issue of service connection for spinal stenosis and other compression fractures had not been specifically claimed nor adjudicated. However, the service representative alleges that at the time of the 1997 Board decision the claim of secondary service connection had in fact been raised. In any event, this matter would pertain to the proper effective date for any grant of service connection and will not be addressed herein. In VA Form 1-646 of June 1998 reference was made to the veteran’s having degeneration within his hips. It is unclear whether this is intended to be a claim for service connection for degenerative arthritis of the hips. However, this issue has not been addressed by the RO and is not before the Board for appellate review. Accordingly, this matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran’s residuals of compression fractures of T12 and L1, L3, and L4 and spinal stenosis at L4-5 are secondary to the service-connected residuals of a compression fracture of L2. It is asserted that a VA examination previously requested was inadequate and that the veteran should be afforded further assistance in the development of his claim, to include the forwarding of the claims file to a physician of his choice, together with the actual X-ray films of his lumbosacral spine, for an opinion as to the etiology of the claimed back disability. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence of record supports the veteran’s claim seeking entitlement to service connection for residuals of compression fractures of T12 and L1, L3, L4, and spinal stenosis at L4-5. FINDINGS OF FACT 1. An opinion of a VA examiner in September 1996 was that there was no relationship between the service-connected L2 compression fracture residuals and two recent compression fractures of L1 and L3 or the spinal stenosis at L4-5, and that the L2 compression fracture residuals did not lead to a compression fracture of T12. 2. A neuroradiologist opined in March 1997 that degenerative arthritis at L1-2 was as likely as not secondary to the abnormal forces caused by the L2 fracture; and that it was likely as not that a progression of spinal stenosis at L4-5 and compression fractures of L1 and L3 were directly related to the abnormal forces caused by the L2 fracture. CONCLUSION OF LAW Residuals of compression fractures of T12 and L1, L3, L4, and spinal stenosis at L4-5 are proximately due to and the result of service-connected residuals of a compression fracture of L2. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.310(a) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION The positive medical opinion in March 1997 from a neuroradiologist makes the veteran’s claim plausible and thus "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), which mandates a duty to assist in developing all pertinent evidence. It is alleged that the opinion rendered at the time of a VA examination in 1996, as requested in the February 1996 Board remand, was inadequate because it did not spell out the rationale for the opinion reached and it was not made clear whether the claim file was available for review. In support of this contention, the service representative has cited Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall, it was held that “a remand [by the Court or the Board] confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders.” However, the Board notes that the 1997 Board decision granted an increase in the service-connected low back disability and only the issue of entitlement to an increase rating was developed at that time, even assuming that a claim of secondary service connection had been raised (as alleged). In other words, any right to compliance with the 1996 remand instructions was limited to the issue of an increased rating. The holding in Stegall, supra, did not create a continuing VA obligation or right on behalf of the claimant relating to other claims or issues which might be subsequently and independently developed for initial RO adjudication or Board appellate review. It has been requested that to fulfill the duty to assist the veteran, the VA examiner in 1996 should be requested to provide the rationale for his negative opinion and, thereafter, the complete claim file (and not merely copies of records in the claim file) as well as the actual X-ray films of his lumbosacral spine, should be forwarded to the neuroradiologist that rendered a positive medical opinion. However, because of the favorable outcome of this decision, this request is moot. It is otherwise the determination of the Board that the evidentiary record is sufficient both in scope and in depth for a fair, impartial, and fully informed appellate decision. Background During military service the veteran was treated for what was reported to be a fracture of the L3vertebral body; however, X-ray study on VA examination in 1972 revealed the fracture was of the L2 vertebral body, with approximately 50 percent loss of vertical height. The other lumbar vertebral bodies were intact and their interspaces were normal. [As concluded in the April 1997 Board decision (at page 4), the inservice notation of a fracture at L3 was in error and the fracture actually involved L2.] A VA outpatient treatment (VAOPT) record of October 1985 reflects an impression of degenerative joint disease (DJD). X-ray films on VA general medical examination in 1987 disclosed moderate narrowing of the L1-2 intervertebral disc space. Other than the compression deformity of L2, the remainder of the intervertebral disc spaces and vertebral body heights were well maintained but there was mild dextroscoliosis. On VA neurology examination in 1987, the veteran complained of non-radiating low back pain as well as tightness and muscle spasm in his lumbar region. There was no involvement of his lower extremities. On examination there was some muscle spasm in the mid-lumbar region, bilaterally. The impression was back pain of a non-neurogenic nature. On VA examination in 1993, the veteran complained of occasional radiation of low back pain into the right leg, down to the knee. He had had a thoracotomy in 1989 (apparently for treatment of either emphysema or cancer). On examination there was mild tenderness to palpation in the mid-line of the upper lumbar region but no spasm. X-rays revealed mild narrowing of the L5-S1 interspace and a mild decrease in the L2 vertebra height but the vertebral heights and intervertebral disc spaces at other sites were unremarkable. There was mild lumbar scoliosis, convex to the right. The impression was chronic low back syndrome with history of old injury with L2 compression fracture. On VA examination in April 1996 it was noted that the veteran had had a lobectomy for treatment of lung cancer. He used a wheelchair intermittently due to back pain and chronic swelling of his feet. Both feet were numb, particularly on the soles of his feet. His bladder dribbled frequently. On examination his lumbar spine remained slightly flexed. There was no muscle spasm and no motor weakness or sensory deficit. The report of the April 1996 VA examination noted that a March 1994 magnetic resonance imaging (MRI) study demonstrated spinal stenosis at L4-5 with some osteoporosis. There was minimal impingement of the thecal sac due to central disc bulging at L2-3. A repeat MRI in June 1995 revealed a compression fracture of L1 and a recent compression of the inferior end plate of L3. The amount thecal impingement at L2-3 was unchanged and the relative degree of spinal stenosis at L4-5 was unchanged. The pertinent impressions were compression fractures of L1, L2, and L3, and spinal stenosis at L4-5. In written correspondence received in June 1996, the veteran’s spouse reported that the veteran had back pain and problems with his feet and legs. On VA examination in September 1996 the veteran reported intermittently using a wheelchair because of the constant low back pain. His clinical history was noted. On examination there was no sciatica on straight leg raising but deep tendon reflexes in the ankles and knees were absent. It was reported that a March 1994 computerized tomogram (CT) revealed moderate prominence, central protrusion or herniated nucleus pulposus with hypertrophy of the facets and ligamentum flavum which significantly compromised the thecal sac. A March 1995 MRI revealed L4-5 spinal stenosis and compression deformity of L1. A June 1995 MRI revealed compression fractures of L1, L2, and a recent compression of the end plate of L3, as well as the persistence of spinal stenosis at L4-5. The impression, after examination, was old compression fracture of L2 and recent (within the past 2 years) compression fractures of L1 and L3 and compression fracture of T12, with the date of onset of the latter being unknown. The examiner commented that he did not believe that there was any relationship between the service-connected compression fracture of L2 and the two recent compression fractures of L1 and L3 or the spinal stenosis at L4-5. Also, he believed that the L2 compression fracture had not led to the compression fracture of T12. X-rays of the veteran’s lumbosacral spine in September 1996 revealed an old compression deformity of the L3 vertebral body and slight compression along the superior aspects of the T12, L1, and L2. Early hypertrophic degenerative changes were noted. It was indicated that a comparison of old radiographs would have been helpful. An X-ray of the veteran’s thoracic spine disclosed compression fracture of the vertebral body of T12 which was most probably old but a comparison with old radiographs would have been helpful for a definitive evaluation. A vacuum phenomenon at T11-12 disc space suggested chronic disc disease. In March 1997 Carl Bash, a neuroradiologist, reported that a 1967 injury had caused a compression fracture of L2. In 1987, an X-ray documented developing degenerative arthritis at the L1-2 disc level which was “as likely as not” [sic] secondary to the abnormal forces caused by the 1967 L2 fracture. It was also stated that: Further evidence of advancing degenerative arthritis, without any interval trauma, is given in the MRI report of 20 March 1994 which stated that his degenerative arthritis had progressed to spinal stenosis due to the bulging dics [sic] at L2-3. Additionally, he had developed compression fractures of L1 and L3, with spinal stenosis at L4-5. It is as likely as not [sic] that this progression of spinal stenosis and compression fractures are directly related to the abnormal forces created around the lumbar spine secondary to his previous L2 injury in 1967. On file are clinical records from June to August 1997 from the Methodist Hospital. An emergency room report of June 8, 1997 reflects that the veteran incurred fractures of T12 and L3 simply by bending over, it also being noted that he had severe osteoporosis, severe chronic obstructive pulmonary disease (COPD), diabetes, congestive heart failure (CHF), and was steroid dependent. He also had a history of severe hypokalemia secondary to Prednisone and diuretis. An admission report of June 8, 1997 reflects that he had had a right second rib fracture thought to be secondary to radiation necrosis (from radiation therapy for treatment of lung cancer). Also noted was vertebral compression fractures secondary to osteoporosis. A later notation indicates that he had steroid dependency with secondary osteoporosis, and an even later notation indicates that he took steroids due to COPD. In July 1997 the veteran had a lumbar myelogram and post-myelogram CT scan. Among the findings was a notation that there was severe narrowing of the spinal canal and the cause of the relatively isolated ligamental hypertrophy at L4-5 was unknown but the impressions included a conclusion that the severe spinal stenosis at L4-5 was due to a combination of herniated disc material, anteriorly, and marked hypertrophy of the posterior ligaments. Analysis Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board may not rely upon its own medical judgment, Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991), nor the medical judgment of adjudicators at the RO. Tucker v. Derwinski, 2 Vet. App. 201, 203 (1992) and Futch v. Derwinski, 2 Vet. App. 204, 206 (1992). It is undisputed that the veteran has lumbosacral disability of more than just L2. Indeed, this was essentially conceded in the April 1997 Board decision granting increased rating. In that decision it was stated, at page 7, that “we cannot reasonably dissociate any of the veteran’s limitation of motion from the service-connected L2 compression fracture.” Thus, the existence of additional lumbosacral disability is conceded (and the limitation of motion stemming therefrom was encompassed in the 50 percent rating which was granted). The question of the etiology of the additional lumbosacral disability must be decided on the basis of competent medical evidence. Here, the only competent medical evidence is the two conflicting medical opinions. It is not error for the Board to favor the opinion of one competent medical expert over that of another if there are adequate reasons and bases. Cathell v. Brown, 8 Vet. App. 539, 543 (1996). “It is not error for the BVA to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reason or bases.” Owens v. Brown, 7 Vet. App. 429, 433 (1995). In comparing the two medical opinions neither is based solely on the assertions of the veteran. Rather, both make reference to MRI’s and radiological studies. Here, the report of March 1997 is the best and most probative evidence in this case because it contains a rationale for the conclusion reached, unlike that expressed by the VA examiner which reflects only the ultimate conclusion without an explanation of the means of arriving at the conclusion. Private clinical records later in 1997 suggest that the recent compression fractures are due to osteoporosis resulting from steroidal medication taken in conjunction with treatment for COPD. However, this does not negate the impact of the contributory role played by the functional impairment stemming from the already service-connected L2 compression fracture residuals, as stated by Dr. Bash. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case that claim is denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990). In this case, for the foregoing reasons and bases, the evidence is in equipoise and, thus, all doubt is resolved in favor of the veteran. ORDER Service connection for residuals of compression fractures of T12 and L1, L3, L4 and spinal stenosis at L4-5 is granted. A. BRYANT Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -