Citation Nr: 9908008 Decision Date: 03/24/99 Archive Date: 03/31/99 DOCKET NO. 96-31 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for low back disability. 2. Entitlement to service connection for thoracic spine disability. 3. Entitlement to service connection for neck disability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The veteran served on active duty from April 1985 to July 1991. This case was remanded by the Board of Veterans' Appeals (Board) in September 1997 to the Department of Veterans Affairs (VA) Medical and Regional Office Center (M&ROC) in Wichita, Kansas, for additional development. The case is again before the Board. The issues of entitlement to service connection for thoracic spine and neck disabilities are addressed in the remand portion of this action. FINDINGS OF FACT 1. All available evidence necessary for an equitable determination of the veteran's claim for service connection for low back disability has been obtained. 2. Chronic low back disability was present in service; low back disability was not found on service entrance examination and the low back disability is not clearly and unmistakably shown to have existed prior to service. CONCLUSION OF LAW Low back disability was incurred in active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim for service connection for low back disability is well grounded within the meaning of 38 U.S.C.A. § 5107(a); that is, it is plausible. Additionally, the facts relevant to the issue have been properly developed and the statutory obligation of VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a). Service connection is granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1998). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304. The veteran's service medical records reveal that there were no pertinent complaints or abnormal findings on his enlistment medical history and examination reports dated in January 1985. It was noted in December 1986 that the veteran slipped and fell in a parking lot; there was a bruise and possible hematoma in the sacral area. Medical records for January 1987 reveal that the veteran's sacrum was tender with slight swelling; it was noted that X-rays of the low back did not show any fracture or dislocation. The assessment was contusion of the sacral bone. The veteran complained in July 1987 of back pain and said that it hurt to stand up. The assessment was low back pain/myositis. The veteran complained in March 1988 of low back and neck pain for the previous two weeks; she indicated that she had to lift things at work and strained her back a lot as a result. The assessment was thoracic and lumbar myositis. She complained of recurrent low back and neck pain in March 1989; she denied any recent history of trauma. The assessment was skeletal pain. Chronic multi-level somatic dysfunction was diagnosed later in March 1989. The assessment in April 1989 was chronic lumbar-pelvic somatic dysfunction, questionable anatomic leg length discrepancy; the condition was considered to have improved later in April 1989. Private outpatient records from November 1991 to October 1995 reveal that the veteran complained of low back and neck pain in November 1991 and August 1992. According to a February 1993 interpretation of an X-ray report of the veteran's low back from Mark E. Breault, D.C., the veteran's right leg was 3mm shorter than her right, with a slight right rotatory scoliosis through the lumbar spine; there was a grade one spondylolisthesis, which was though to be either congenital or from prior trauma. Also noted were some early degenerative changes at L5-S1. According to a November 1995 statement from Dr. Breault, the veteran had been treated in February 1993 for a low back injury, which she received by lifting boxes over her head at work. She was treated for some spasm, swelling, and fixation of L5; she was considered fully recovered after treatment in April 1993. On VA examination in January 1996, the veteran complained of back and neck discomfort since working in a warehouse in service in 1986. An X-ray study revealed some irregularity and increased density in the posterior elements of L5, possibly secondary to exacerbation of bony formations. On VA examination in April 1996, X-rays of the lumbar spine were noted to reveal spondylolysis at L5-S1, which was thought to have most probably been there since childhood and could have been the cause of some lumbosacral pain. The pertinent diagnosis was chronic lumbosacral pain, with spondylolysis of L5-S1. The veteran testified at her personal hearing at the M&ROC in August 1996 that because she had not had low back problems prior to service, the lumbar findings in service must be traumatic, rather than congenital, in origin. According to a January 1997 statement from G. B. Wood, M.D., the examination reports in the record since the traumatic fall in "January 1988" did not support the association of the present lumbosacral findings as either caused by or aggravated by the remote trauma. An August 1997 statement from Craig N. Bash, M.D., a board certified radiologist, reveals that, after review of the veteran's claims file, including the service medical records and X-rays, he diagnosed chronic lumbosacral pain, with spondylolysis of L5-S1. Dr. Bash noted that the lumbar spine X-rays showed irregularities that could either be congenital or acquired as a result of trauma and concluded that it was at least as likely as not that the spondylolysis resulted from trauma to the sacral area in December 1986 or, if present prior to the veteran's slipping and falling, that there was aggravation of a pre-existing condition. On VA examination in November 1997, the veteran complained of neck and back pain with radiation to the right leg when she sat too long. She took Motrin twice a week and received physical therapy or chiropractic treatment every six months. It was noted that the only thing seen on X-rays of the lumbar spine was spondylolysis at L5-S1 on the left, which appeared to be old and congenital because of the location. The pertinent diagnosis was chronic lumbar pain with no obvious episode of injury or accident, with a normal examination and a normal X-ray except for congenital L5 spondylolysis. The examiner concluded that the spondylolysis of L5-S1 could be related to repetition of bending, stooping, and lifting while the veteran was in service. The veteran complained on VA examination in January 1998 of intermittent back pain, with recent development of pain and tingling in the right upper thigh. It was noted that she was in the Air Cargo Service while on active duty and that her daily duties included lifting heavy boxes, which weighed approximately 50 pounds each, usually without a back brace. It was noted that X-rays of the lumbar spine in January 1998 revealed bilateral spondylolisthesis of L5 pars interarticularis with mild anterolisthesis of L5 over S1. The pertinent diagnosis was long-term intermittent back pain with spondylolisthesis at L5-S1. The examiner concluded that the veteran's military job might have aggravated her back problem. According to a December 1998 medical report from Dr. Bash, the post-service clinical findings of spondylolysis of L5-S1, including on VA examination, were either incurred or aggravated beyond normal progression in service. The evidence of record does not reveal any low back complaints or abnormal low back findings on service entrance examination in January 1985. The evidence satisfactorily establishes the presence of chronic low back disability in service. Although some of the medical evidence indicates that the veteran's low back disability existed prior to service, other medical evidence indicates that the low back disability is etiologically related to service. The evidence does not clearly and unmistakably establish that the veteran's low back disability existed prior to service. Therefore, the presumption of soundness has not been rebutted and service connection is warranted for the veteran's low back disability. ORDER Service connection for low back disability is granted. REMAND The record reflects some confusion as to the nature, extent, and etiology of any thoracic or cervical spine disability. The veteran's service medical records contain complaints of thoracic and cervical spine disability, and pertinent diagnoses during service were thoracic myositis, chronic multilevel somatic dysfunction, and trapezius muscle strain. While a VA examiner concluded in November 1997 that the veteran's thoracic and cervical pain could not be related to any occupation during service, another VA examiner indicated in January 1998 that the veteran's military job might have aggravated her neck problem. Additionally, Dr. Bash concluded in December 1998 that the veteran continued to have residuals of cervical strain but that additional evaluation, to include an MRI, might be needed to determine whether the veteran has thoracic and cervical disabilities caused by service. No MRI of the spine has been conducted. Based on the above, the Board finds that additional development is required before the Board decides the remaining issues on appeal. Accordingly, the case is REMANDED to the M&ROC for the following actions: 1. The veteran should be requested to provide the names, addresses and approximate dates of treatment for all health care providers, including VA, who may possess additional records pertinent to his claims for service connection for thoracic and cervical spine disabilities. After obtaining any necessary consent from the veteran, the M&ROC should obtain, and associate with the file, all records noted by the veteran that are not currently on file. 2. After the above, the M&ROC should arrange for a VA orthopedic examination of the veteran by a board certified specialist, if available, to determine the nature, extent, and etiology of all current thoracic and cervical spine disabilities. The claims file, including a copy of this REMAND, must be made available to the examiner before the examination for proper review of the medical history. All indicated studies, including an MRI, should be performed. The examiner should then provide an opinion with respect to each currently present disorder of the thoracic spine and neck as to whether it is at least as likely as not that such disorder is etiologically related to service. The rationale for all opinions expressed must be provided. 3. Thereafter, the M&ROC should review the claims file and ensure that all developmental actions, including the medical examination and requested opinions, have been conducted and completed in full. The M&ROC should then undertake any other indicated development and should readjudicate the issues of entitlement to service connection for thoracic spine and neck disabilities. 4. If the benefits sought on appeal are not granted to the veteran's satisfaction, the M&ROC should issue a supplemental statement of the case and provide the veteran and her representative with an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until she is otherwise notified by the RO. This case must be afforded expeditious treatment by the M&ROC. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999), for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. SHANE A. DURKIN Member, Board of Veterans' Appeals - 2 - - 7 -