Citation Nr: 9830219 Decision Date: 10/09/98 Archive Date: 10/21/98 DOCKET NO. 95-25 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a lumbosacral spine disability 2. Entitlement to service connection for a cervical spine disability. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD K. Conner, Associate Counsel INTRODUCTION The veteran had active military service from September 1983 to April 1986. This matter comes to the Board of Veterans’ Appeals (Board) from a January 1995 rating decision of the Department of Veterans Affairs (VA) Atlanta Regional Office (RO) which denied her claim of service connection for a “back disability.” It is noted that although the issue certified for appellate review has been styled as service connection for a “back disability” it is apparent from a review of the record (including the service medical records, VA medical examination reports, and the veteran’s contentions) that the current claim of service connection includes disabilities of the cervical and lumbosacral spine. For purposes of clarification, therefore, the Board believes that the issues for consideration are more properly styled as listed on the cover page of this decision. It is also noted that in September 1998, the veteran’s representative submitted directly to the Board a written medical opinion in support of the veteran’s claim. Under 38 C.F.R. § 20.1304(c) (1998), any pertinent evidence submitted directly to the Board by a claimant or his or her representative must be referred to the RO for review and preparation of a supplemental statement of the case unless this procedural right is waived or the Board determines that the benefits to which the evidence relates may be allowed on appeal without such referral. Given the Board’s favorable decision below, referral of this evidence to the RO for initial consideration is not warranted. CONTENTIONS OF VETERAN ON APPEAL The veteran contends that her current disabilities of the cervical and lumbosacral spine were incurred in September 1983 while she was in basic training. She maintains that she has had continuous problems since that time. 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 supports service connection for a lumbosacral spine disability and a cervical spine disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran’s appeal has been obtained by the RO. 2. Service medical records show diagnoses of cervical and lumbosacral strain. 3. The veteran’s current disabilities of the lumbosacral and cervical spine cannot be disassociated from the in-service lumbosacral and cervical spine strains. CONCLUSION OF LAW The veteran’s lumbosacral and cervical spine disabilities were incurred in active military service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran’s claims of service connection for a lumbosacral spine disability and a cervical spine disability are well grounded; that is, plausible claims have been presented. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In this case, service medical records showing treatment for back and neck pain and a September 1998 medical opinion relating the veteran’s current lumbosacral and cervical spine disability to her active service are sufficient to conclude that the claims of service connection for a lumbosacral spine disability and a cervical spine disability are well grounded. In addition, after reviewing the evidence of record, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the veteran in developing the facts pertinent to her claims is required to comply with the duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a). A review of the service medical records shows that on military enlistment medical examination in January 1983, the veteran’s spine and musculoskeletal system were normal. On a report of medical history, she denied a history of recurrent back pain. In September 1983, the veteran sought treatment for low back and cervical pain. Examination showed full range of motion with pain at the extremes. X-ray of the cervical spine was negative. The assessment was overuse muscle strain, cervical and lumbar spine. On follow-up examination the following month, the veteran reported that her condition had improved somewhat. A lumbosacral belt was prescribed and she was given a “no back pack” profile. The assessment was lumbosacral strain. Additional service medical records show that the veteran was again seen in January 1984 reporting recurrent, nonradiating low back pain. The assessment was lumbosacral mechanical strain. In February 1984, she sought treatment for back pain, stating that she had reinjured it several days prior. X-ray examination showed early osteophyte formation between T11-12; however, the lumbar spine was within normal limits. In August 1984, she again sought treatment for low back pain, reporting that it radiated to the side. An April 1986 report of medical history shows that the veteran reported that “I am also experiencing lower back pain, a condition brought on in basic training in September 1983.” The military separation medical examination report is not of record. The post-service medical evidence shows that in April 1991, the veteran was examined for purposes of enlistment in the Air Force Reserve. She denied a history of recurrent back pain or bone, joint, or other deformity. Physical examination showed the spine and musculoskeletal system to be normal. Additional reserve treatment records show that in June 1992, she sought treatment stating that she had been working out at a rowing machine and had pulled a muscle in her left shoulder and upper back. Examination showed obvious spasm in the left upper trapezius. The assessment was trapezius strain. VA outpatient treatment records show that in July 1993, the veteran was seen for low back pain. Physical examination showed pain over the lumbar spine; the assessment was low back pain. She was again seen in September 1993, reporting persistent low back pain. She also reported numbness on the lateral aspect of the left leg with some problems with infrequent foot drop of the left foot. The veteran indicated her back pain had begun in 1983. The assessment was rule out radiculopathy secondary to herniated nucleus pulposus. Private treatment records show that in September 1993, she sought emergency treatment for low back pain. She stated that she had been moving furniture and had heard a “pop” in her back. She complained of pain in the lumbar region with occasional tingling in the left leg. She also reported that she had had a previous low back injury in basic training. Examination showed tenderness in the lumbar area with evident spasms. The assessment was low back pain; Motrin was prescribed for pain and Flexeril was prescribed for muscle spasms. In January 1994, the veteran underwent VA medical examination. She reported that her low back and neck pain had begun in September 1983 during basic training. Since that time, she indicated that she had continued to have problems and that her low back and neck ached constantly. She also indicated that when her low back pain was severe, she experienced leg symptoms and bladder incontinence. Physical examination of the lumbosacral spine showed that the veteran was able to attain greater than 90 degrees flexion, but it was done at a very slow pace due to pain. The veteran also had full rotation at the hips; passive leg raising was significant for pain and she was only able to have her right leg raised to approximately 30 degrees and the left leg to approximately 25 degrees. Physical examination of the neck showed full range of motion in all directions. The examiner noted, however, that the veteran had point tenderness along both the spinal and paraspinal areas in the distribution of C5-7, T3-4, and L3-5. The diagnoses were severe muscle spasms of both neck and lower back and rule out degenerative joint versus disk compression of low back. The veteran subsequently had an X-ray examination which showed degenerative changes of the lumbosacral spine and narrowing of the intervertebral disc space and bony encroachment on the left neural foramina at C5-6. The veteran again underwent VA medical examination in April 1997. She stated that she had initially injured her back in 1983 in basic training and that she had had pain since that time. In addition, she reported that in 1995, she had been involved in a motor vehicle accident in which she was struck from behind, thus increasing her pain. Physical examination of the low back showed forward flexion to 90 degrees, backwards flexion to 25 degrees, and lateral flexion to 30 degrees, bilaterally. The veteran complained of pain on motion. The impression of the examiner was that the veteran had musculoskeletal strain in the neck and lower back with no decrease in the range of motion, although there was pain. He felt that the veteran’s complaints were out of proportion to her examination which was essentially benign with the exception of muscle spasms. In an addendum to the examination report, the examiner noted that X-ray examination of the veteran’s lumbar spine had shown degenerative spondylosis; small spurs were visible on several of the vertebra and the spine was slightly scoliotic and the disc spaces were well-preserved in height and density with no loss of lordotic curvature. X-ray of the cervical spine showed degenerative changes in C5-6 with disc space narrowing, but no evidence of encroachment on the exit foramina. The veteran again underwent VA medical examination in June 1997. She reported that he had initially injured her low back in 1983 while on basic training and had had intermittent since that time. Currently, she stated that she had constant low back pain on a daily basis which she rated as a 6 out of 10 in severity. The veteran also reported that she had been involved in a car accident the previous year and that litigation was pending. The veteran also complained of cervical pain that was axial in nature and described her pain as a 9 or 10 out of 10 in severity. Physical examination showed the cervical spine to be tender to palpation. Neurologic examination showed motor strength to be 5/5 in the upper and lower extremities; sensation was intact and deep tendon reflexes were +2 and symmetric. Lhermitte sign of the cervical spine was negative. The examiner noted that “[r]eview of X-rays from last year shows only mild spondylitic changes, no significant abnormality, which is essentially normal for [the veteran’s] age.” The assessment was mechanical neck pain and mechanical back pain. The examiner concluded that the veteran’s “outcome is somewhat worse from her chronic pain syndrome considering that litigation is currently pending. These cases have been scientifically proven to have worse outcomes. However, I see no radiographic or hard clinical findings significant for radiculopathy or incapacitating lumbar or cervical disorder. I am unable to render an opinion as to whether this is related to her military service. Certainly, current mild spondylitic changes have no relation to any injury sustained while in the service.” An August 1997 reserve treatment record shows that she sought treatment for back pain. She reported that she had been involved in a “whiplash” motor vehicle accident in November 1995 and had had problems with cervical and upper thoracic muscular spasms since that time. In a September 1998 opinion, C. Bash, M.D., a neuroradiologist from the Uniformed Services University of the Health Sciences, indicated that he had reviewed the veteran’s claims folder, including her service medical records and the VA medical examination reports. He noted that the veteran had been diagnosed with cervical and lumbosacral strain in service and that post-service X-ray examination had shown degenerative changes of the lumbosacral spine, as well as narrowing of the intervertebral disc space and bony encroachment on the left neural foramina at C5-6. He concluded, in pertinent part, that “[i]t is my opinion that the strains of the cervical and lumbar spine in service cannot be disassociated from the findings, confirmed by X- ray.” Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also 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). VA regulations provide that with chronic disease shown 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. 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. 38 C.F.R. § 3.303(b). When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court discussed the benefit of the doubt provisions of 38 U.S.C. § 5107(b). The Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the veteran prevails. Thus, to deny a claim on its merits, the preponderance of the evidence must be against the claim. In this case, after reviewing the evidence of record, the Board has determined that service connection for a lumbosacral spine disability and a cervical spine disability is warranted. As noted by Dr. Bash, the service medical records confirm that the veteran was treated on several occasions in service for low back and neck pain; the diagnoses contained in these records include cervical and lumbosacral strain. In addition, although her separation examination report is not of record, on an April 1986 report of medical history, she related a history of recurrent back pain. The post-service medical evidence includes a January 1994 VA X-ray report, showing degenerative changes of the lumbosacral spine and narrowing of the intervertebral disc space and bony encroachment on the left neural foramina at C5-6. In a September 1998 medical opinion, Dr. Bash indicated, after reviewing the veteran’s claims folder, that the in-service strains of the veteran’s cervical and lumbar spine could not be disassociated from her current disabilities of the cervical and lumbosacral spine, as shown by X-ray findings. The Board notes that this medical opinion linking the veteran’s current disabilities to her active military service is not contradicted by the other medical evidence of record. In fact, on most recent VA medical examination in June 1997, the VA examiner indicated that he was unable to offer an opinion with respect to the etiology of the veteran’s disabilities. As set forth above, under the benefit of the doubt rule embodied in 38 U.S.C.A. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the veteran’s favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert, 1 Vet. App. at 54. Such a conclusion cannot be made in this case. In light of the foregoing, the Board finds that the evidence of record is sufficient to support the claims of service connection for disabilities of the cervical and lumbosacral spine. ORDER Service connection for a lumbosacral spine disability and a cervical spine disability is granted. J.F. GOUGH 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 granting less than the complete benefit, or benefits, sought on appeal is appealable to the U.S. 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. - 2 -