BVA9500828 DOCKET NO. 93-07 680 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for lower back disorder characterized as chronic low back syndrome. 2. Entitlement to service connection for lumbar disc disease, arthritis and stenosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Constance C. Hickey, Associate Counsel INTRODUCTION The veteran had active service from March 1948 to March 1952 and from August 1953 to April 1971. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). A July 1980 rating decision originally denied the veteran's claim for service connection for a low back disorder. The veteran did not appeal that determination. The veteran subsequently applied to reopen his claim for service connection for low back disorder, but the RO again denied his claim in June 1991. In light of the favorable action taken below, with respect to chronic low back syndrome, and in the interest of administrative efficiency, the Board characterizes the issues for appellate review as set forth on the preceeding page. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to service connection for his low back disorder. He contends that he sustained back injuries during service in Korea and Vietnam. He argues that he has a current back disability which had its inception during service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims folder. Based on our review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that service connection is established for a low back disorder characterized as chronic low back syndrome. FINDINGS OF FACT 1. The veteran sustained back injuries and experienced subsequent episodes of low back pain during service. 2. Within months of separation from service, VA examiners diagnosed chronic low back syndrome. 3. The July 1980 rating decision of the RO, which denied service connection for a low back disorder, was reopened by the submission of new and material evidence. 4. The totality of the evidence, both old and new, establishes that the veteran currently suffers from a low back disorder characterized as chronic low back syndrome of service onset. CONCLUSION OF LAW Evidence received in conjunction with the reopened claim establishes that chronic low back syndrome was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107, 7105; (West 1991); 38 C.F.R. §§ 3.104, 3.156, 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for low back disorder, characterized as chronic low back syndrome, is well-grounded; that is, the claim is plausible. There is no indication that there are additional, pertinent records which have not been obtained concerning that issue. Accordingly, there is no further duty to assist the veteran in developing his claim, as mandated by 38 U.S.C.A. § 5107(a), with respect to that issue. Factual background The veteran testified at his personal hearing before a hearing officer that he first injured his back during service in Korea. The veteran stated he recalled that he fell while jumping from a height of six to eight feet during a strategic withdrawal from the enemy. He reported that no treatment was received at the time of the injury because of the circumstances of combat. The veteran testified that he was subsequently injured in service when he hit his back against the gear shift of a motor boat that he operated. He stated that he recalled treatment at that time involved medication and heat. Service medical records for January 1957 show that the veteran was treated for muscle pain following a blow to the left paravertebral muscles at the level of L1. The recorded diagnosis was contusion to the left paravertebral musculature. X-rays of the lumbosacral spine reportedly revealed a spina bifida occulta of the L5 and S1, but otherwise normal findings. Service records indicate that the veteran was treated in October 1958 for rapidly developing back pain, aggravated by movement and deep inspiration, which was relieved by splinting and immobility. No trauma or strain were reported and X-rays were described as normal. The examiner's impression was noted as possible pleurisy. Records indicate that the veteran again complained of low back pain in January 1966, and reported lower back stiffness in May 1967, which he linked to his 1957 back injury. Although May 1967 records indicate a request for a consultation evaluation of the veteran's back, service medical records contain no indication that such an evaluation was conducted. Service records for April 1968 show that the veteran was again treated for low back pain. The examiner noted paraspinous spasm and tenderness with full range of motion. His recorded impression was low back sprain. At the time of his 1968 reenlistment and 1970 separation examinations, the veteran indicated a history of back trouble. However, the report of a medical board examination performed at retirement, which specifically addresses other orthopedic disorders, makes no mention of a low back disorder and indicates a normal spine. During a VA compensation examination for an unrelated claim that was conducted in July 1971, shortly after his retirement from service, the veteran complained of arthritis in his back, and back pain, especially on stooping or lifting. The recorded diagnoses include low back syndrome, arthritic type suspected, mild. VA medical records show the veteran was treated for back pain in January 1972. He reported that he had chronic back pain which was worsening. On examination it was noted that he had loss of lumbar lordosis and some tenderness on the lumbar spine. The examiner's impression was chronic low back syndrome. Heat and medications were prescribed. In May 1972 the veteran reportedly noted back pain when being treated for an unrelated problem. The report of May 1972 spinal X rays indicates normal alignment and interspacing of lumbar vertebral bodies and intact pedicles, and confirm spina bifida occulta of the L5 segment. VA records for May 1973 show that the veteran again complained of back problems and related leg pain. During a December 1979 examination the veteran gave a history of low back pain due to degenerative arthritis which he claimed was reportedly getting worse. The report of the May 1980 compensation examination states that examination of the veteran's joints was unremarkable with the exception of his right arm. At that time, he complained of continual low back pain. The May 1980 X-ray of the lumbar spine reportedly showed asymmetry of the neural arch of L5 with articulating facets, on the right side facing in an anteroposterior position and on the left side in a lateral vertical position, which the reports states may cause some instability of the lower back. The vertebrae were noted to be in good alignment and normally formed otherwise. There was reportedly some narrowing of the disc space between L4-5 and osteophyte formation on the upper anterior margin of L4. No other abnormalities were noted. VA records for October 1980 indicate that the veteran complained of severe low back pain. In January 1981 he was reportedly treated for low back pain in addition to a complaint of burning right lateral thigh. January 1981 records indicate the veteran asserted a long history of low back pain. The examiner noted mechanical low back pain. The recorded assessment was lumbar muscle spasm, right lateral flexor of spine T2. July 1983 records show that the veteran was treated for acute low back pain. A history of mild low back pain was noted. The examiner noted palpable pain in the L5 area, but no detectable muscle spasm. Reflexes, strength, sensation and gait were described as normal. The recorded assessment was probable muscle spasm. In October 1983 the veteran was reportedly seen for numerous complaints including low back pain. Records indicate that the examiner's diagnosis was chronic low back pain. VA records for February 1984 show that the veteran again gave a history of low back pain. The report of VA X-rays performed in July 1985 indicates no evidence of fracture or bony destructive process, but describes minimal to moderate degenerative changes throughout. November 1985 records indicate that the veteran was treated for increased back pain and indicated a history of back problems. On examination it was noted that back flexion was 80 degrees and there was no decease in rotation. Contraction of the paravertebral muscles, greater on the right side that on the left side, was reported at L2-L5. The examiner reported tenderness on palpation at the right sacroiliac level of S2. April 1986 records note that the veteran was treated for back trauma after lifting an air-conditioning unit followed by riding on a lawn mower. The veteran reportedly claimed that he had had chronic low back sprain and pain for years. The examiner noted decreased forward and backward extension, and tenderness at the L3-L4 on the left side. A questionable mass was noted on the right side at L3-L4. The assessment recorded was acute lumbar strain and sprain and chronic lower spinal strain. Records of a followup examination conducted a few days later indicate the veteran reported that on motion or standing for a prolonged time, he experienced pain radiating from his back to his hip and leg, and a burning sensation on the left hip. He also reportedly complained of numbness and tingling in left hip to knee area. On a subsequent followup examination back pain was reportedly improved, full range of motion was restored and there was no tenderness. Records for May 1987 show that the veteran was treated for acute left side back pain at L4-5 following minor lifting. The examiner noted decreased range of motion secondary to pain and palpable spasm with tenderness at the left paraspinal muscles. Acute L5 strain is the assessment record. According to records, bed rest, heat and medications were prescribed. VA records for December 1988 note that the veteran complained of pain in lumbosacral spine and other joints. Examiners observed red, hot and swollen joints, but full range of motion in joints, including the lumbosacral spine. It was noted that X-rays indicated increased lumbar lordosis. In February 1989, the veteran reportedly gave a history of degenerative disease of the cervical spine while seeking treatment for painful arms. It was noted that he denied any spinal or cervical injuries. The claims folder contains a letter from Dr. V. Micolucci, the veteran's private physician, dated April 1989, in which he states that the veteran had degenerative disease of the lower lumbar spine according to X-rays taken by Dr. Micolucci. Although no evidence of such X-rays was found in the veteran's claims folder, the report of VA X-rays dated May 1989 attests to moderate degenerative arthritis in cervical and lumbar regions, which is described as probably compatible with the veteran's age. In February 1990, the veteran was reportedly treated for low back pain which the examiner associated with arthritis. The report of an magnetic resonance imaging spectroscopy (MRI) conducted in August 1990, included the following conclusions: (1) generalized degenerative disc desiccation and disease from the T12 to L1 level, with the relative exception of the L1-L2 level, but particularly evident at the L4-L5 level where the joint space was most narrowed; (2) relative spinal stenosis at the L3-L4 level and just below, with hypertrophy of the facets bilaterally, narrowing the lower neural foramina and compressing the thecal sac to a mild to moderate degree; (3) hypertrophy of the facets with degenerative change narrowing the neural foramina more on the left than the right and mild focal disc bulging or protrusion on the left narrowing the left neural foramina and abutting against the left thecal sac at the L4-L5 level; (4) asymmetry of the posterior elements and degenerative change at L5-S1 without compression of the thecal sac or nerve roots. The report a lumbar myelography and CT myelography performed in January 1991 indicates an annular bulge at the L2-L3 level that did not displace the thecal sac. Bilateral lateral disk herniations were noted at the L3 to L4 level, the right being greater than the left and impinging upon the neural foramina at the L3-L4 level. Prominent ligamentum flavum hypertrophy and spinal stenosis were also reported at this level. A circumferential annular bulge was noted at the L4-L5 level. L5- S1 level was described as unremarkable. Records show that VA doctors performed a laminectomy and diskectomy in June 1991. The post operative diagnosis noted was spinal stenosis in an L3-L4 disk. VA outpatient records from June 1992 report that the veteran complained of lower back pain, described as prickly pain and numbness which increased on prolonged standing or sitting, and radiated through his left leg to the area of the knee. Entitlement to service connection for low back disorder characterized as a chronic low back syndrome Service connection connotes many factors, but basically it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if pre-existing such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. Such a determination requires a finding of a current disability which is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet.App. 309, 314 (1993); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). Service connection may be accomplished by affirmatively showing inception in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Each disabling condition shown by a veteran’s service records, or for which he seeks service connection, must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154. Additionally, regulations provide that service connection may 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). When, after consideration of all evidence and material of record in a claim for service connection there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). Every veteran is presumed 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. 38 U.S.C.A. § 1111. The report of the veteran's enlistment examination indicates no musculo-skeletal defects. Therefore, the veteran must be presumed not to have had a lower back disorder prior to service. Absent the filing of a notice of disagreement and a substantive appeal within one year of the date of mailing of the notification of the denial of a veteran's claim, a rating determination is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a). However, the claim will be reopened upon presentation of "new and material evidence." If new and material evidence has been received, the second step, involving a de novo review of all the evidence, both old and new, is to be undertaken to determine if there is a basis for granting the claim. Since the RO's July 1980 denial of service connection for low back disorder, numerous VA records dated 1972 through 1992 have been added to the veteran's claims folder. Additionally the veteran's private physician submitted a statement in 1989, attesting to spinal degenerative joint disease. Medical records for January and May 1972, and May 1973, and records of treatment subsequent to August 1980, which include the January 1972 diagnosis of chronic low back syndrome and the compatible diagnoses of chronic low back pain and chronic lower spinal strain in 1983, and 1986, respectively, were not present in the claims folder at the time of the August 1980 denial of service connection. The RO has found that these additional records attesting to the numerous complaints of, and treatment for low back pain, and documenting the additional diagnoses of chronic low back disorder made in 1972, 1983 and 1986, constitute new and material evidence which must be considered for a fair adjudication of the veteran's claim. 38 C.F.R. § 3.156. Accordingly, the Board has conducted a de novo review of the veteran's claim for service connection for low back disorder based upon all of the evidence of record. The Board is mindful of its obligation to give due consideration to the times, places and circumstances of the veteran's service which included combat areas and conditions. The Board notes that although X rays prior to 1980 reveal no abnormality other than congenital spina bifida, and the records of examinations conducted by service physicians at separation indicate no spinal abnormalities, the veteran reported a history of back trouble during service and at the time of separation. Moreover, his service medical records and post service records document a longitudinal record of low back injury and complaints of low back pain, tenderness and spasm, with diagnoses of chronic low back disorder by VA doctors twice within a year of separation. VA examiners made compatible diagnoses of chronic low back pain and chronic lower spinal strain in 1983, and 1986, respectively. The Board finds that the evidence with respect to the incurrence of a chronic low back disorder during service, characterized as low back syndrome, is at least in relative equipoise. Therefore, in accordance with 38 U.S.C.A. § 5107(b), the issue is resolved in favor of the claimant, and service connection for low back disorder, characterized as chronic low back syndrome, is established. ORDER Service connection for low back disorder characterized as chronic low back syndrome is granted, on the basis of new and material evidence reopening the claim for that disorder. REMAND In view of the favorable action taken above, granting entitlement to service connection for chronic low back syndrome, further action is required in order to determine whether an etiological relationship exists between this service connected disorder and the development of degenerative arthritis and disc disease of the lumbar spine, and spinal stenosis, so as to warrant a grant of service connection for any or all of these disabilities on a secondary basis. Accordingly, this case is remanded to the RO for the following action: 1. The RO should arrange for examination by a VA orthopedic specialist to assess the current status of the veteran's lumbar spine disability. All appropriate studies and tests should be performed. It is specifically requested that, after a thorough review of the veteran's claims folder has been undertaken, the examiner offer an opinion on the question of whether there is an etiological relationship between the veteran's service-connected chronic low back syndrome and the development of any of the following disorders: arthritis; disc disease; and spinal stenosis involving the lumbar spine. It is requested that the examiner provide supporting rationale for his or her opinion, whether favorable or unfavorable to the veteran. 2. Following completion of that requested development, the RO should again review the veteran's claim of service connection for lumbar spine arthritis, disc disease and spinal stenosis in the light of all evidence of record. Specifically, adjudicative action should be undertaken on the question of whether any of these disorders developed as a proximate result of the service-connected back disorder, pursuant to 38 C.F.R. § 3.310(a) (1994). 3. If action taken remains adverse, the RO should provide the veteran and his representative with a supplemental statement of the case containing all relevant evidence, law and regulations, including a citation to 38 C.F.R. 3.310(a), and reasons for the action taken. A reasonable period of time should be provided for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this action the Board intimates no opinion, legal or factual, as to the ultimate determination in this claim. No action by the veteran is required until he receives further notice. N. R. ROBIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).