Citation Nr: 9908064 Decision Date: 03/25/99 Archive Date: 03/31/99 DOCKET NO. 95-17 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether a November 1994 severance of a grant of service connection for spondylolisthesis at the L5-S1 level, which was accomplished on the basis that that earlier grant of service connection had been clearly and unmistakably erroneous, was proper. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Acosta, Associate Counsel INTRODUCTION The veteran served on active duty from November 1971 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1994 rating decision of the Department of Veterans Affairs (VA) North Little Rock, Arkansas, Regional Office (RO), which severed a prior grant of service connection for spondylolisthesis at the L5-S1 level on account of its having been clearly and unmistakably erroneous. The issues of entitlement to increased ratings for the service-connected residuals of a right total knee replacement and fracture of the L1 vertebra, for which the veteran was furnished a Statement of the Case and which the veteran's representatives listed in their statements of November and December 1998 as issues on appeal, are not properly before the Board because the veteran did not perfect their appeal. Consequently, they will not be reviewed in the present decision, as the Board has not acquired jurisdiction over either claim. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the present appeal has been obtained and developed by the agency of original jurisdiction. 2. The veteran was granted service connection for spondylolisthesis at the L5-S1 level in a February 1994 rating decision. 3. The RO severed the February 1994 grant of service connection for spondylolisthesis at the L5-S1 level in a November 1994 rating decision on the basis that that grant of service connection was clearly and unmistakably erroneous. 4. The evidence of record does not show that the February 1994 grant of service connection for spondylolisthesis at the L5-S1 level was clearly and unmistakably erroneous. CONCLUSION OF LAW The November 1994 severance of a grant of service connection for spondylolisthesis at the L5-S1 level, which was accomplished on the basis that that earlier grant of service connection had been clearly and unmistakably erroneous, was not proper. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.105(d), 3.303 (1998). REASONS AND BASES FOR THE FINDINGS AND CONCLUSION Factual background: The service medical records show that the veteran entered active service with a normal back and no history of recurrent back pain or any other lower back problems. See, in this regard, the reports of medical history and medical examination for induction, both dated in August 1971. The veteran is therefore considered to have entered service in sound condition. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (1998). The service medical records also reveal that the veteran first injured his lower back in August 1972, while "engaged in authorized, supervised football." X-Rays taken at that time revealed that he fractured the right transverse process of the L1 vertebra and that the lumbar area was otherwise normal. However, new X-Rays were obtained two months later, in October 1972, and this time the radiologist noted that, in addition to the fractured L1 vertebra, there was apparent lumbarization of the first sacral segment, with a small 1 cm. cystic-like area in the posterior inferior portion of the S1 vertebra, possibly related to a degenerative process, as well as "almost a first degree spondylolisthesis of this S1 segment on S2, something not appreciated on the previous lumbar spine series." The impression was listed as lumbarization of S1, with minor ("almost" 1st degree) spondylolisthesis of S1 on S2 and the radiologist recommended that oblique films of the lumbar spine be obtained. Due to these findings, the veteran was given a two-month physical profile of no prolonged standing. The oblique films that were recommended above were obtained in November 1972. They demonstrated that there was bilateral spondylolysis at the S1 level involving the "lumbarized" S1 segment. The veteran was evaluated by an orthopedist in November 1972. In the report of this examination, the orthopedist said that the veteran had had a fracture of the L1 transverse process but that this was not his major problem, since his major problem was the lumbarization of S1 with spondylolysis and a grade 1 spondylolisthesis of the S1 and S2 vertebrae, which caused an aching lower back pain and paresthesias. He also said that the veteran would be advised to do flexion exercises, that, if this failed, he would need a corset or brace and that, if this failed, too, he might need a spinal fusion. He further said that the veteran should not have a job with prolonged standing, walking or physical strain on his back and that he should be cross trained and "dropped from the military because of this condition." Pursuant to the above findings and recommendation, the director of medical services of the base where the veteran was stationed subscribed a December 1972 statement in which he said that the veteran was seen by an orthopedic consultant who had diagnosed spondylolysis and spondylolisthesis, old fracture of a lumbar vertebra and paraspinal muscle spasms, that the veteran could not effectively perform any work requiring him to stand for prolonged periods or walk excessively, that his job could not entail physical activity which would strain his back and that "[m]edical indications are that this is a permanent condition which will require duties consistent with these defects." A permanent physical profile reflecting these recommendations and findings was then issued on that date. Two service medical records dated in August 1973 reveal that the veteran re-injured his back when he slipped in the shower. According to the first of these two medical records, X-Rays did not reveal any new fractures, although, according to the second record, X-Rays revealed lumbarization of S1 with bilateral spondylolysis of S1 and first degree spondylolisthesis of S1 on S2, in addition to an old fracture of the right first and third lumbar transverse processes. The impression was listed in this second service medical record as belated spondylolysis S1, with first degree spondylolisthesis of S1 on S2. In a service medical record dated seven days after the above second service medical record of August 1973, it was noted that the veteran felt better, with less back pain, and the subscribing physician recommended that the physical profile be changed to "L-2-T for 2 weeks." The service medical records also show that the veteran had a motorcycle accident in February 1976, secondary to which he again complained of lower back pain in May 1976. X-Rays taken at that time revealed normal vertebral body height and intervertebral spacing, a slight anterior flattening of the first lumbar vertebra, presumably the site of the veteran's previous fracture, and bilateral spondylolysis of the pars interarticularis of L5 with a first degree spondylolisthesis of L5 on S1. Regarding this last finding, the radiologist noted the following: "I do not know if this is post traumatic or developmental." The record further shows that, in January 1977, the veteran again fell, hitting his coccyx, and that, in April 1977, he was again sent for an orthopedic consultation due to his complaints of several episodes of low back pain in the past three to four years ever since his fracture to the first lumbar vertebra. This time, it was noted that he had felt a sudden sharp low back pain while playing softball two days before the referral. On examination, it was noted that the veteran's mid and low back pain history had started with the L1 transverse process fracture in 1971, which had been treated with three weeks of bed rest and at which time the L5 spondylolysis was "first appreciated." It was also noted that the veteran had had several episodes per year of sudden- onset mid and low back pain, often aggravated by activity and associated with the feeling of the back giving way and sensation of pain in both thighs, anteriorly. The objective findings, some of which are only partially legible, reveal that there was an increased lumbar lordosis at the S1 level, with bilateral paravertebral spasm and spinal process tenderness from L1 through S1, and slight forward slippage of L5 on S1. There was also X-Ray evidence of Grade I spondylolysis and spondilolisthesis, and this was listed as the impression. A service medical record dated in May 1977 reveals that the veteran was sent for physical therapy, which he underwent on the same day, while another service medical record of the same date reveals that, again, a physical profile was approved, based on the objective findings of a Grade I spondylolisthesis. The record further shows that the veteran was medically discharged in May 1981 due to a Medical Board's findings regarding the multiple problems that the veteran had had with his right knee during service, including chronic instability, right patellar femoral arthritis and the residuals of several surgeries. Consequently, the report of medical examination that was prepared at that time, for "Medical Board" purposes, only made reference to the abnormalities of the right knee itself, characterized the veteran's spine as "normal" and remained silent with respect to the lower back conditions that had been diagnosed on several occasions during service. In November 1981, the veteran underwent a VA medical examination for VA compensation purposes. The report of this examination reveals only complaints of right knee problems, objective findings to the effect that the examination of the back revealed "no gross abnormalities" and a diagnosis of history of spondylolysis and spondylolisthesis of the lumbosacral spine. Also, X-Rays obtained at that time revealed six functioning vertebrae, normal intervertebral spaces and sacroiliac joints and no evidence of fracture or dislocation. Pursuant to a review of the service medical records and the report of the November 1981 VA medical examination, the Chicago, Illinois, RO granted service connection for the residuals of a fracture to the L1 lumbosacral vertebra in an April 1982 rating decision. In discussing the evidence pertaining to the veteran's back, the subscribing official said in that rating decision that an August 1972 service medical record revealed that the veteran had had a fracture of the transverse process of the L1 vertebra with history of spondylosis and spondylolisthesis and that the examination of the lumbar spine was "apparently normal." Private medical records dated in January and September 1990 reveal that the veteran re-injured his lower back at work in January of that year, when he fell into a pit, landing on his back on a steel pipe. They also reveal diagnoses of spondylolisthesis of L5-S1 and an abnormal disc at L4-5 and L5-S1. In an October 1990 rating decision, the San Antonio, Texas, RO denied an increased rating for the service-connected residuals of a fracture to the L1 vertebra on the basis that the "current back pathology is the result of an on the job injury and unrelated to his SC back condition." Private medical records dated in 1992 and 1993 reveal that the veteran suffered another fall at work, in December 1992, again landing on, and re-injuring, his lower back. Conservative medical treatment was initially administered but, eventually, the veteran underwent surgery, in September 1993. The procedure consisted of a laminectomy at L5, with bilateral exploration of S1 nerve roots and decompression, discectomy of L4-L5 on the left and fusion of L4 to the sacrum, posterolaterally. In a February 1994 rating decision, the North Little Rock, Arkansas, RO (which has handled the present claim since 1994) granted a temporary total rating pursuant to the provisions of 38 C.F.R. § 4.30 (Paragraph 30 benefits), based on convalescence following the surgery of September 1993. The Paragraph 30 benefits were made effective from September 9 to November 1, 1993, and a noncompensable rating was then assigned thereafter. With this particular decision, the RO in effect granted service connection for the spondylolisthesis at the L5-S1 level and it is noted that the benefits were apparently granted due to the RO's realization that the spondylolisthesis for which the veteran underwent surgery in September 1993 was in fact the same chronic disease that had been first diagnosed during service. In May 1994, the RO issued a "proposal to sever" rating decision in which the veteran was advised of the RO's intention to sever service connection for spondylolisthesis at the L5-S1 level on the basis that the February 1994 grant of service connection had been clearly and unmistakably erroneous. The RO acknowledged the evidence of inservice diagnoses of spondylolisthesis at the L5-S1 level but stressed the fact that an examiner had said in May 1976 that he could not tell whether this disease was post traumatic or developmental. The RO further explained that in a prior VA medical examination (presumably the one conducted in November 1981), there had been no evidence of any abnormality at the L5-S1 level, that that examination had been "entirely within normal limits" and that, therefore, the RO had only granted service connection, in its April 1982 rating decision, "for the fracture of the L1 vertebra based on history as all documented fractures are considered to have chronic residuals." In the May 1994 rating decision, the RO also made reference to the fact that recently produced medical evidence revealed that the veteran had suffered low back injuries at his place of employment in January 1990 and December 1992 and that an increased rating for the service-connected residuals of a fractured L1 vertebra had been denied in October 1990 after a finding to the effect that the back pathology exhibited by the current evidence was the result of an on-the-job injury and unrelated to the service-connected condition. The RO then went on to explain the specific reasons for the proposal to sever service connection for spondylolisthesis at the L5- S1 level as follows: It is proposed to sever service connection for spondylolisthesis of L5-S1 because the decision establishing service connection was clearly and unmistakably in error in it's [sic] failure to show that spondylolisthesis of L5-S1 as currently diagnosed was incurred in or aggravated by service and present as a chronic disability from the date of separation from active duty to the present time. In the absence of evidence demonstrating the chronicity discussed, there was no statutory authority for overruling the prior rating decision as the 2-8-94 disability rating decision has done. The record shows that the veteran was notified of the above proposal by letter of May 1994 in which he was also advised of his due process rights, including his right to submit, within a 60-day period, any additional pertinent evidence to move the RO not to take the action proposed. The veteran was then re-examined by VA in March 1994 and the already known diagnosis was confirmed and the inservice and post-service history referred to above was re-stated. He also testified at a September 1994 RO hearing, in which he essentially expressed his contentions to the effect that he believes that the current disability had its onset during service and that the post-service incidents were simply re-injuries of an service-acquired chronic disease. He also explained the lack of complaints about back problems when he was examined by VA in November 1981 by saying that, at that point in time, he was under the impression that his right knee problems were "all [that was being] taken care of." The evidence that was produced after the May 1994 proposal to sever was considered "not acceptable" by the RO, the severance was then accomplished in a November 1994 rating decision, and the veteran was advised of this action by letter of December 1994. The veteran, of course, disagrees with the RO's action of November 1994 and basically contends that that action was improper and that therefore the February 1994 grant of service connection for spondylolisthesis at the L5-S1 level should be restored. In support of his claim, he submitted a photocopy of page 895 of Dee-Mango & Hurst's Principles of Orthopaedic Practices, which defines the term "spondylolisthesis" as the forward slipping of one vertebra on another and indicates that the disease can be congenital or due to trauma (in the form of the acute fracture of a vertebra, allowing its forward slip). In support of his claim, the veteran also offered testimony at a second RO hearing that was conducted in October 1997, at which time he restated his contentions, which included his firm belief that the spondylolisthesis "has been there" since he injured his back playing football during service in Turkey. The record contains also private medical records produced in 1996 and 1997, some of which confirm the diagnosis of spondylolisthesis at the L5-S1 level, post-surgery. It also contains the report of VA medical examinations that were conducted in January and April 1998, as well as a medical statement from a private physician, dated in March 1998. In the report of the VA medical examination of January 1998, the subscribing physician said that, since X-Rays taken after the 1972 inservice fracture of the L1 vertebra showed no evidence of fracture, "apparently" the transverse process had healed. He also said that at no time was there a fracture described involving the body of L1 or of the disk above or below L1 and that, while a pars defect, spondylolysis and spondylolisthesis "are findings attributed to a defect of the genetic or developmental origin and not an acquired condition," it was of course possible that trauma could affect this and the veteran was complaining that his present problem was a direct result of his spondylolysis and spondylolisthesis. Finally, he said that he was unable to come to a decision that the veteran's back problem was related in any way to the old fracture of the L1 transverse process and that he certainly had suffered injuries since leaving service, which were the basis for his current organic back complaints. In his medical statement of March 1998, the subscribing private physician indicated that he did believe that many of the veteran's spine problems could be attributed to his spine fracture that occurred in the 70's and that he believed that he had a good case and that his current problems were related to his service injury. In response to the report of the VA medical examination of January 1998 and the Supplemental Statement of the Case (SSOC) that was thereafter issued in February 1998, the veteran submitted a statement in March 1998 in which he said that, according to the 1989 edition of the American Medical Association Encyclopedia of Medicine, lifting heavy objects, twisting suddenly or adopting a bad posture could cause spondylolisthesis and a direct blow, fall from a height or sudden twisting could result in the fracture of one or more vertebrae and even spondylolisthesis. In his March 1998 statement, the veteran also made reference to the RO's statement in the February 1998 SSOC to the effect that "the examiner was unable to come to a decision that the back problem is related in any way to an old fracture of the L1 transverse process" and, with regard to this statement, he said the following: "If your examiner was unable to come to a decision on my back problem, why then must I be the one to suffer this indecision? I believe my case is strong." The veteran further said that the private medical statement of March 1998 corroborated his medical evidence, should substantiate his appeal and "definitely assists the rule regarding benefit of reasonable doubt." Finally, the veteran was again examined by VA in April 1998 due to his having filed a claim for a total rating based on individual unemployability. The subscribing physician, who was the same person who examined the veteran in January 1998, said in this report that it was his opinion that the veteran's primary injury in 1972 was minor and had healed uneventfully, that the rest of his spinal injuries and spinal problems had occurred after leaving service and that the current spinal condition, which now included radicular symptomatology, was solely the result of injuries sustained after leaving military service. The applicable VA regulation and its judicial interpretation: Once service connection has been granted, it can be severed only upon the Secretary's showing that the rating decision granting service connection was "clearly and unmistakably erroneous" and only after certain procedural safeguards have been met. See, 38 C.F.R. § 3.105(d) (1998); see, also, Daniels v. Gober, 10 Vet. App. 474, 478 (1997), and Graves v. Brown, 6 Vet. App. 166, 170-171 (1994). Specifically, when severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. See, 38 C.F.R. § 3.105(d) (1998. The burden is on the Secretary of VA to show that a prior grant of service connection was clearly and unmistakably erroneous. Graves, at 170. In fact, the United States Court of Appeals for Veterans Claims (the Court) has held that section 3.105(d) places at least as high a burden of proof on VA when it seeks to sever service connection as section 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. See, Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). In this regard, the Court has also held that "clear and unmistakable error" is defined the same under § 3.105(d) as it is under § 3.105(a). See, Venturella v. Gober, 10 Vet. App. 340, 342 (1997). Specifically, the Court has defined clear and unmistakable error as a very specific and rare kind of error, the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See, Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The Court has set forth a three-pronged test to determine whether "clear and unmistakable error" was present under 38 C.F.R. § 3.105(a) in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. See, Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-314 (1992) (en banc)). Regarding the above three-pronged test, however, it is noted that the Court has recently held that, although the same standards apply in a determination of clear and unmistakable error in a final decision (section 3.105(a)) and a determination as to whether a decision granting service connection was the product of clear and unmistakable error for the purposes of severing service connection (section 3.105(d)), section 3.105(d) does not limit the reviewable evidence to that which was before the RO in making its initial service connection award. See, Daniels, at 480. The Court reasoned that because section 3.105(d) specifically states that a change in diagnosis may be accepted as a basis for severance, the regulation clearly contemplates the consideration of evidence acquired after the original granting of service connection. Thus, "[i]f the Court were to conclude that a service connection award can be terminated pursuant to § 3.105(d) only on the basis of the law and record as it existed at the time of the award thereof, VA would be placed in the impossible situation of being forever bound to a prior determination regardless of changes in the law or later developments in the factual record." Id. Based on the foregoing, therefore, the Board's task in the present appeal is to determine, first, whether the procedural requirements of 38 C.F.R. § 3.105(d) were met by the RO and, if they were met, to determine, based on all the evidence of record (including all the additional pertinent evidence that was produced after the rating decision of February 1994), whether the February 1994 rating decision was clearly and unmistakably erroneous in granting service connection for spondylolisthesis at the L5-S1 level and, consequently, whether that grant of service connection should be restored. Analysis: The Board finds that the procedural requirements of § 3.105(d) were met, as the record shows that the RO provided the veteran with the required 60-day period to produce evidence and appear at a hearing, rights that the veteran exercised by submitting additional evidence and written statements, as well as oral testimony at the two hearings that were conducted in September 1994 and October 1997. The Board also finds that the evidence of record does not show that the grant of service connection for spondylolisthesis at the L5-S1 level was clearly and unmistakably erroneous so as to warrant the severance that was accomplished in November 1994. As thoroughly explained above, the record is clear in that spondylolisthesis at the L5-S1 level was first diagnosed during service, shortly after the veteran suffered his injury to the L1 vertebra and at that time it was already noted that the spondylolisthesis was the veteran's main problem in his lower back, that it even warranted a physical profile (which was initially granted as permanent) and that, if conservative treatment failed, he would need to undergo spinal fusion at a later time. It is the Board's opinion that the fact that a physician said in May 1976 that he could not tell whether the disease was post traumatic or developmental cannot be used against the veteran since that statement at most raises a reasonable doubt and it is a well-known VA regulation that reasonable doubt should always be resolved in favor of the claimant. See, 38 U.S.C.A. § 5107(b) (West 1991); and 38 C.F.R. § 3.102 (1998). It seems that the circumstances surrounding the veteran's medical discharge in June 1981 due to his chronic right knee problems were the reason for the absence of evidence of a lower back disability in the report of the medical examination for separation and the report of the VA medical examination that was conducted shortly therafter, in November 1981. The veteran's current explanation that he did not mention his back problems when he was examined in November 1981 because he felt that the right knee was the condition that was being taken care of at that time appears entirely reasonable and plausible and the fact that he re-injured his lower back twice after service cannot be held against him as proof that the spondylolisthesis had a post-service onset, particularly due to the well-documented evidence of several inservice diagnoses of spondylolisthesis as early as October 1972, all supported by objective (X-Ray) findings. Regarding the VA physician's statement in the report of the January 1998 medical examination to the effect that he "was unable to come to a decision that his back problem is related in any way to the old fracture of the L1 transverse process," the Board agrees with the veteran in that this statement, at most, raises a reasonable doubt which, again, should be resolved in favor of the veteran. The Board certainly is aware that the above VA physician later said, in the report of the April 1998 medical examination, that he believes that the inservice fracture of the L1 vertebra healed uneventfully and that the current symptomatology is "solely the result of injuries sustained after leaving military service." However, the problem is more complex than it seems at first sight, as it is evident that the two post-service injuries that the veteran suffered in 1990 and 1992 worsened the disease to the point that the veteran had to undergo the spinal fusion that was predicted in 1972 and the Board does not dispute the fact that part of the current symptomatology is attributable exclusively to post-service traumatic events. Still, though, the fact remains that the disease was first objectively diagnosed during service at least twice, and after the veteran had fractured his L1 vertebra, and the reason for its not having been noticed on the X-Rays of November 1981 may have had something to do with the fact that the disease was not as noticeable at that time as it is nowadays. In this regard, it is noted that, as noted earlier, the disease was not seen on the X-Rays of August 1972 due to its being only "almost" first degree, but it was noticed on the X-Rays that were obtained a couple of months afterwards, when the radiologist was obviously looking more closely in search of an answer for the veteran's complaints of chronic, unresolved low back pain. Finally, regarding the VA physician's January 1998 comment to the effect that spondylolisthesis is a finding attributed to a defect of the genetic or developmental origin and not an acquired condition," the Board notes that the medical evidence in the record (which includes the May 1996 statement from a military radiologist in which he acknowledged that the disease could had been caused by trauma, and the photocopy of the aforementioned medical book submitted by the veteran), is clear in that spondylolisthesis can be either a congenital or developmental condition or a condition acquired due to trauma. The facts that the spondylolisthesis in the present case was first diagnosed after an inservice injury to the L1 vertebra and that the related symptomatology (basically, chronic lower back pain) started after that traumatic incident, raises at least a reasonable doubt as to whether the condition was of traumatic origin or not and, again, reasonable doubt has to be resolved in favor of the claimant. The Board certainly understands the RO's rationale for severing service connection in November 1994 but it appears that this action was actually based on the RO's disagreement as to how the facts were weighed or evaluated when the grant of service connection was accomplished by another RO in February 1994, rather than on an actual finding of clear and unmistakable error. In the Board's opinion, the February 1994 grant of service connection for spondylolisthesis does not raise to the level of its being the product of a "clear and unmistakable error," as defined by regulation and the above cited Court cases. In view of the above, the Board concludes that the November 1994 severance of a grant of service connection for spondylolisthesis at the L5-S1 level was not proper, as that grant of service connection was not clearly and unmistakably erroneous. Restoration of service connection for spondylolisthesis at the L5-S1 level is thus warranted and is hereby granted. ORDER The November 1994 severance of a grant of service connection for spondylolisthesis at the L5-S1 level not having been proper, restoration of that grant of service connection is granted. JACK W. BLASINGAME Member, Board of Veterans' Appeals - 16 - - 1 -