BVA9507256 DOCKET NO. 90-00 861 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entilement to service connection for a back disability. REPRESENTATION Appellant represented by: Rick Surratt, Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD R. P. Harris, Counsel INTRODUCTION The appellant had active service from May 1967 to July 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 1989 rating decision of the Roanoke, Virginia, Regional Office (RO) that, in part, denied entitlement to service connection for a back disability. Historically, the issue of service connection for a back disability had been previously denied by a rating decision in October 1983; and after having been informed of that adverse decision later that month, he had not filed a notice of disagreement therewith. In a decision rendered October 2, 1992, the Board denied service connection for a back disability. The appellant appealed the Board's October 2, 1992, decision to the United States Court of Veterans Appeals (Court). Thereafter, the Court granted appellant's unopposed motion for remand, and vacated the Board's decision. [citation redacted]. In August 1994, the Board referred the case for an independent medical expert (IME) opinion regarding whether appellant's chronic low back disability had its onset in service. An IME opinion was rendered in September 1994, and a copy was furnished to the appellant's representative. In January 1995, his representative responded in writing with additional argument. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he incurred a chronic, not an acute, back disability in service, or alternatively, that his inservice symptoms of low back pain and lower extremity numbness continued after service separation until his current chronic back disability was diagnosed, without intercurrent postservice injury or disability. It is asserted that an examination at service separation, which did not document any back complaints, findings, or diagnoses, was cursory and inadequate, and should not be relied upon as disproving inservice chronicity of a back condition. Reference is made to numerous lay statements, appellant's testimony at hearings on appeal, and medical articles submitted by appellant, in support of his position; and it is argued that this evidence is credible. His representative asserts that the Board exceeded the scope of the motion for remand in obtaining the IME opinion, and that procedural requirements were not complied with in the Board's intended reliance upon that opinion. It is requested that consideration be provided to pertinent statutory and regulatory provisions and judicial precedents in deciding this case. It is also requested that the benefit of the doubt doctrine be applied. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered the evidence and material of record in the appellant's claims files. 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 is in equipoise and warrants a grant of service connection for a back disability. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. By a decision in October 1983, the RO denied service connection for a back disability. The appellant was notified later that month of the adverse determination, but did not file timely disagreement therewith. 3. Additional evidence submitted subsequent to the October 1983, when viewed in the context of all the evidence, does change the outcome, since it presents a reasonable probability that lumbar disc disease had its onset in service, and that lumbar traumatic arthritis is causally or etiologically related to his lumbar disc disease. CONCLUSIONS OF LAW 1. Evidence received subsequent to the unappealed rating decision of October 1983, which denied entitlement to service connection for a back disability, is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.104(a), 3.156(a), 20.302(a) (1994). 2. Chronic lumbar disc disease was incurred in the appellant's wartime service. 38 U.S.C.A. §§ 1110, 5107(b) (West 1991); 38 C.F.R. § 3.303 (1994). 3. The appellant's lumbar traumatic arthritis is proximately due to or the result of lumbar disc disease. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.310 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the Board's favorable decision, the appellant's claim for service connection for a back disability is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and the evidence of record adequate. An issue for resolution is whether or not new and material evidence has been submitted to reopen the appellant's claim for entitlement to service connection for a back disability. "New" evidence means more than evidence which was not previously physically of record; and it must be more than merely cumulative. To be "material" evidence, there must be a reasonable possibility that consideration of the new evidence, when viewed in the context of all the evidence, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The prior unappealed October 1983 rating decision is final and may not be reopened, in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302(a); Manio v. Derwinski, 1 Vet.App. 140 (1991). Given the recent lay statements alleging that the appellant had low back pain and lower extremity numbness after service and the IME opinion, which related to the probability that chronic back disability had its onset in service, the Board finds that this constitutes new and material evidence sufficient to reopen the claim for service connection for a back disability. It is immaterial whether or not the RO formerly determined that new and material evidence has been presented to reopen the claim of entitlement to service connection for a back disability, since the Board is granting service connection for a back disability, classified as postoperative residuals of lumbar degenerative disc disease and traumatic arthritis of the lumbar spine, on a de novo basis. Thus, the Board's considering subissues and arguments or applying statutes, regulations, or Court analyses which may not have been considered by the RO is nonprejudicial to appellant. Bernard v. Brown, 4 Vet.App. 384, 393 (1993). With respect to another matter, in a January 1995 written statement, the appellant's representative asserted that the Board had exceeded the scope of the motion to remand, incorporated by reference into the Court's July 13, 1993, order, by obtaining the IME opinion. However, pursuant to 38 U.S.C.A. § 7109(a) (West 1991) and 38 C.F.R. § 20.901(d), it was the Board's judgment, on remand from the Court, that an additional medical opinion was warranted by the medical complexity or controversy involved in the appeal. The physician who rendered the IME opinion in fact indicated therein that the medical question in issue was complex, in part due to the contradictory or incomplete nature of the evidence of record. In Bielby v. Brown, No. 92-653, slip op. at 14 (U.S. Vet. App. Dec. 20, 1994), the Court noted "[t]he statute, 38 U.S.C. § 7109, and regulation, 38 C.F.R. § 20.901, governing the provision and use of an IME leaves to the discretion of the Board the necessity of obtaining an opinion." Therefore, the Board acted properly in obtaining the IME opinion. Additionally, in that January 1995 statement, the appellant's representative argued that the Board failed to comply with the requirements of Thurber v. Brown, 5 Vet.App. 119 (1993), by not providing the appellant's representative with a statement addressing the reliance proposed or intended to be placed by the Board on the IME opinion. However, the procedural requirements set forth in Thurber apply to situations such as where the Board intends to rely on medical treatises obtained subsequent to issuance of the most recent Statement of the Case or Supplemental Statement of the Case, but do not apply to IME opinions, which are governed by separate statutory and regulatory provisions set forth in 38 U.S.C.A. § 7109(c) (West 1991), and 38 C.F.R. § 20.903(1994). The notice and comment provisions of 38 U.S.C.A. § 7109(c) and 38 C.F.R. § 20.903 were complied with by the Board. These concerns raised by the appellant's representative in that January 1995 statement are therefore without merit. The appellant's representative in that statement additionally appeared to unjustly imply that the Board would rely upon the IME opinion and "attempt to interpret the IME opinion in a manner adverse to the veteran." The Board would like to point out that the purpose of obtaining the IME opinion was simply to have a physician who is a recognized expert and independent from the Board review all the evidence, and offer his expert opinion as to the medical question in controversy. The Board had no ulterior motive in obtaining an IME opinion. To the contrary, obtaining the IME opinion has proved beneficial to the appellant, since it has been given considerable evidentiary weight in the Board's reaching a favorable decision of this appeal. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. §§ 1110. In pertinent part, 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, 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). 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). The appellant's service records reflect that he served in Vietnam, was a light weapons infantryman, and was awarded a Combat Infantryman's Badge. He does not contend that he injured his back in combat. The service medical records reflect that in May 1968, he reported that he had begun having low back pain radiating down the left thigh the previous month, at which time he sought hospital treatment in Australia where he was on "R&R" at the time. He reported that x-rays at that time were negative, and he had not been hospitalized. Since then, back pain had decreased but he experienced left thigh pain, numbness and slight left leg weakness, and occasional radiating pain down the left ankle. Neurologic findings revealed questionable slight weakness of the left hallucis extensor. The examiner stated that he knew the appellant and was "impressed" by his symptoms; and the assessment was to "rule out lumbar disc." In May and July of that year, he continued to complain of sciatic-type pain. An x- ray of the back was within normal limits in July 1968, but a straight leg raising test was positive on the left. The impression was pinched nerve. In November and early December 1968, the appellant complained of left thigh pain with radiation occasionally down that extremity. Clinical findings, including an x-ray of the back, were unremarkable except for a positive straight leg raising test on the left. The impression was sciatica. Later that December, probable mild sciatica with diminished left ankle jerk was clinically noted. He was confined to quarters for three days with a diagnosis of herniated nucleus pulposus, cause unknown. However, on examination for service separation dated in June 1969, the spine was clinically reported as normal, as were virtually all other medical conditions listed on the examination form; and in an attendant medical questionnaire, he denied ever having recurrent back pain or any other medical condition listed on that form. The appellant's representative has argued that the separation examination was a rather cursory evaluation of the appellant's back, as indicated by the absence of detailed findings. The fact that the appellant checked off the negative box on that medical questionnaire in answering the question whether he ever had or presently had recurrent back pain, despite documented treatment for back symptomatology during service, may suggest that the overall separation examination was rather cursory and not properly conducted, or may suggest that appellant made a clerical error on that form or correctly recorded a negative answer to that part of the question regarding whether he currently had recurrent back pain. The evidence at this point does not adequately portray whether the discogenic symptomatology reported earlier in service was medically confirmed as "chronic" disease or disability at service discharge. The earliest postservice clinical evidence of definite chronic back disability was not until May 1978, nearly nine years after service separation, when a private radiographic study reported straightening of the lumbar spine, and six lumbar vertebrae with mild degenerative spurring in the lower lumbar area. There was no evidence of joint space loss or other bony abnormality. During Department of Veterans Affairs (VA) podiatric examination in September 1983, the appellant reported a history of occasional low back pain and that herniated nucleus pulposus had been diagnosed. Clinically, there were no pertinent findings except for sacroiliac tenderness and radiographic evidence of minimal degenerative changes of the lumbosacral spine. Diagnoses included herniated nucleus pulposus, ruled out. A critical issue for resolution is whether the back symptomatology in service was "chronic" in nature, or if not, whether continuity of symptomatology has been shown to relate his current back disability to service. At this point in time, neither chronicity in service nor continuity of symptomatology after service was persuasively shown, as to raise a reasonable doubt in the appellant's favor for granting service connection for chronic back disability. Private medical reports dated in 1982 referred to unrelated disabilities. Private medical records dated in 1984 and 1985 and a private radiographic report dated in July 1987 reflect that the appellant sustained a back injury in November 1983 and that he had been a coal miner for approximately two decades. An insurance check payable to appellant refers to the appellant's employer as a coal company and November 1983 as date of accident. In a June 1989 statement, Calvin J. Johnson, M.D., reported that the appellant had injured his back in November 1983. It was noted that this injury occurred when he was working as a coal miner in an approximately 40 inches high space, carrying two 8 inch cinderblocks, and experienced sudden, severe back pain radiating into the left leg. It was indicated that he had to leave work and seek treatment, and in June 1984, underwent hemilaminectomy and diskectomy for a herniated disc at L5-L6. The negative evidence includes the service separation examination, which did not reflect complaints, findings, or diagnoses pertaining to a chronic back disability, and the absence of clinical evidence documenting postservice back disability until nearly nine years after service, when mild degenerative changes of the lumbar spine, but no discogenic disease, were radiographically shown. Moreover, the September 1983 VA examination reflected that herniated nucleus pulposus had been ruled out. This VA examination had been conducted prior to an industrially-related back injury in November 1983, after which discogenic disease was documented with resultant lumbar disc surgery. Thus, this evidence suggests that any sciatic-type symptoms in service were acute and transitory, resolved therein without residual disability, and cannot be reasonably related to his postservice chronic back disability initially medically documented many years after service, when degenerative changes of the lumbar spine were radiographically shown, and a herniated nucleus pulposus was reported following an industrially-related back injury. However, the positive evidence includes the sciatic-type symptoms and diagnosis of a herniated nucleus pulposus documented in the appellant's service medical records, prior to the negative service separation examination. Additionally, in an April 1989 VA outpatient treatment report, the examiner noted the appellant's history of inservice back injury, referred to a service medical record as documentation of inservice back and left leg pain, and recorded current clinical findings as "residual of HNP, which according to his records began in the service." During VA podiatric examination in September 1983, the appellant gave a history of occasional low back pain and that herniated nucleus pulposus had been diagnosed. Arguably, this could have meant recent low back pain and recently diagnosed herniated nucleus pulposus, although it appears more likely to have been referring to an inservice history, particularly since said symptoms and diagnosis were documented by his service medical records. Clinically, there was sacroiliac tenderness and radiographic evidence of minimal degenerative changes of the lumbosacral spine. Thus, it appears that the appellant had some back symptomatology, consisting of sacroiliac tenderness, although symptoms were not necessarily diagnostic of lumbar disc disease, prior to his industrially-related back injury in November 1983. See medical articles submitted with appellant's representative's Supplemental Memorandum, including 2 Samuel L. Turek, Orthopaedics: Principles & Their Application, 1489 (4th ed. 1984); and Cecil Textbook of Medicine, 2044, 2249, 2253 (James B. Wyngaarden, et al. eds., 18th ed. 1988), which refer to radicular symptoms as prominant indication of ruptured intervertebral disks. With regard to confirming discogenic disease, Cecil Textbook of Medicine, supra, at 2253 states, "The diagnosis of herniated disk is deduced from the characteristic clinical symptoms and findings. In many patients with radiculopathy, findings are minimal and the history must establish the diagnosis....A high- resolution CT scan often establishes the diagnosis. MRI is also helpful." The evidentiary record does not reflect that CT scan or MRI was performed in service or proximate thereto, to diagnose his back disability, if such tests were then available. Statements dated in March and April 1989 were received that April from two individuals who allegedly had served with the appellant in service and were coworkers after service. They reported that his physical problems in service and after service were due to his feet; and made no mention of any back problems. However, one of these individuals later submitted another statement, dated in June 1989, in which he mentioned that appellant in service had been treated for low back pain and left leg numbness, and continued to have these symptoms after service. While the credibility of these statements is questionable due to the failure to refer in the earlier statement to any back problems in service or subsequent thereto, this may have been due to the earlier statements having been submitted for proving appellant's claim for an increased rating for his bilateral foot disability (an issue that he later withdrew from this appeal). In other words, these earlier lay statements may have only referred to appellant's foot problems because that was the focus of the inquiry at the time. The credibility of the aforementioned June 1989 statement is also bolstered by statements dated in January 1989 (prior to that statement) from a foreman and a coworker, who alleged that they had known appellant as early as August 1969, and that he had low back pain and left leg numbness. The foreman additionally alleged that due to these symptoms, appellant had absenteeism from work and was reassigned from equipment operator to foreman from August 1974 to July 1982. There is no distinct reason to question the credibility of these statements, even though they were made many years after the time in question and due to their former employment relationship with appellant, the affiants may have developed a natural bias in favor of his attainment of a successful outcome to his claim. During a hearing on appeal in November 1989, the appellant testified that his back pain began after military physical training, and that he experienced back symptoms in Vietnam while carrying field packs and jumping from helicopters hovering over rough terrain. See hearing transcript, at T.2-3, 10. He stated that after service, he continued having back symptomatology at work, and that a physician diagnosed "pulled" muscle approximately in the 1970's. See hearing transcript, at T.4, 15. He recalled that his initial myelogram was not until 1984. See hearing transcript, at T.6. He alleged that his back pain in service has continued to the present time. See hearing transcript, at T.8. He stated that no additional private medical records of treatment in the 1970's were available. See hearing transcript, at T. 15. The appellant's testimony at a subsequent hearing on appeal in August 1991 is essentially similar, except he stated that he had not sustained a back injury in 1983, but that it was written up as a coal mining accident for insurance purposes. See hearing transcript, at T.8. He later explained that "I wouldn't call it an accident...It just, well the pain got so I had it 24 hours a day." He stated that he was working as a coal miner at the time, but had not sustained trauma or twisting-type injury. See hearing transcript, at T.14-15. In assessing his credibility, his allegation that an industrially-related back injury had not occurred but had simply been reported in that manner for insurance purposes, does not appear plausible, particularly since this appears contradictory to the June 1989 private clinical record which relates the specific circumstances concerning the November 1983 work-related back injury. However, this instance of doubtful credibility does not necessarily impugn the veracity of his other statements. A significant piece of evidence is the September 1994 IME opinion, wherein it was concluded that (1) during service, the appellant probably had mild lumbar radiculopathy involving the lower lumbar nerve roots most likely due to disc herniation, particularly since he was a young individual without radiographic evidence of degenerative changes, (2) that herniated disks can completely heal and be asymptomatic or can be associated with increased risk of recurrent herniation and nerve root injuries requiring surgery, (3) that the gaps in the medical evidence and conflicting information rendered it difficult to determine whether his inservice radiculopathy was self-limiting, and (4) that it was most likely that appellant's inservice herniated lumbar disc predisposed him to later recurrence, culminating in surgery. The credibility of the evidence in this case has been particularly crucial in our determination. As the Court has stated in Smith v. Derwinski, 1 Vet.App. 235, 237 (1991), "determination of credibility is a function for the BVA." The independent medical expert is entirely independent of the VA and the appellant, is a recognized expert in neurology, and appears to have rendered a comprehensive, reasoned medical opinion. As stated in Gilbert v. Derwinski, 1 Vet.App. 49 (1990), "by reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility." Based upon weighing the negative and positive evidence, and resolving reasonable doubt in appellant's favor, the Board concludes that the lumbar discogenic disease more likely had its onset in service. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. § 3.303. With respect to the subissue of service connection for arthritis of the lumbar spine, the IME opinion additionally concluded that (1) radiographic evidence in service had shown a normal lumbar spine, but mild degenerative arthritis of the lumbar spine had been reported on x-rays in 1978, and (2) that these degenerative changes could have developed independent of the herniated disc in service or could be associated with chronic disc disease. The IME opinion may reasonably be interpreted as negative evidence, in suggesting the lumbar degenerative joint disease could be independent of the appellant's lumbar disc disease, or positive evidence, in suggesting that the lumbar degenerative joint disease could be related to the disc disease. Given the Board's finding that the appellant had chronic lumbar disc disease in service, for which service connection is now in effect, the subissue for resolution is whether his lumbar degenerative joint disease is secondary to the lumbar disc disease. Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The negative evidence includes the absence of radiographic evidence of lumbar degenerative joint disease in service or until 1978, nearly nine years after service, which suggests that the degenerative changes, clinically shown as mild at that time, may have arisen independent of the inservice lumbar disc disease. Additionally, his occupation as a coal miner since shortly after service commonly is known to require strenuous labor, which could lead to degenerative changes. See Orthopaedics: Principles & Their Application, supra, 1488. However, the positive evidence includes the fact that the inservice lumbar disc disease was rather mild, as the IME opinion indicated, such that the mild disc disease might not be expected to cause rapid degenerative changes in adjacent lumbar vertebrae. Furthermore, Dr. Johnson's June 1989 statement indicated that radiographic findings in 1984 and 1989 revealed that degenerative changes were at or in close proximity to the lumbar discs for which surgical intervention had been accomplished. Additional positive evidence includes medical articles submitted with appellant's representative's Supplemental Memorandum, which provide support in general terms of a causal or etiological relationship between lumbar disc disease and development of degenerative changes in adjacent lumbar vertebrae. Id., 1487- 1488. This medical text states, "An important result of the herniation is that the disk becomes thinned, the axis of motion is displaced posteriorly, and, as a result of the added strain thrown on the posterior facets, a traumatic arthritis of the posterior articulations ensues." The positive and negative evidence is in relative equipoise on this point for the foregoing reasons. Thus, relying in large part upon the IME opinion and the aforementioned medical text regarding an etiological relationship between disc herniation and development of traumatic arthritis of the spine, the Board concludes that the appellant's lumbar traumatic arthritis is proximately due to or the result of his lumbar disc disease, for which service connection is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.310. ORDER Service connection for a back disability is granted. HOLLY E. MOEHLMANN 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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 (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.