Citation Nr: 0005699 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 95-33 472A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder, to include spina bifida, spondylolisthesis, and slight disc space narrowing of L4-L5 and L5-S1. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P.M. DiLorenzo, Counsel INTRODUCTION The veteran served on active duty from November 1969 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied entitlement to service connection for a low back disorder. By memorandum dated in October 1997, the Vice Chairman of the Board ruled favorably on the Board's own motion to advance this case on the docket because of administrative error that resulted in significant delay in docketing the appeal. See 38 C.F.R. § 20.900(c) (1999). In January 1998, the Board found that the claim for service connection for a low back disorder was not well grounded. The veteran appealed to United States Court of Appeals for Veterans Claims (formerly the U.S. Court of Veterans Appeals) (Court). In February 1999, counsel for the veteran and VA filed a Joint Motion for Partial Remand and for a Suspension of Proceedings. The parties moved the Court to vacate the portion of the January 23, 1998, Board decision that found that the claim of entitlement to service connection for a low back disorder was not well grounded. The parties also moved to dismiss from the appeal three other issues adjudicated in the January 1998 decision. In a March 1999 order, the Court vacated the Board's January 1998 decision denying service connection for a low back disorder, to include spina bifida and spondylolisthesis, and remanded the case. In November 1999, the Board requested a medical opinion from an independent medical expert (IME) in accordance with 38 C.F.R. §§ 3.328, 20.901(d) (1999). After the opinion was received at the Board, the appellant was provided a copy and 60 days to submit any additional evidence or argument in response to the opinions. 38 C.F.R. § 20.903 (1999). His representative responded with written argument. Duplicate copies of treatment records were received at the Board in August 1999. The veteran waived the RO's consideration of this evidence. Therefore, the case need not be returned to the RO for consideration and the issuance of a supplemental statement of the case. 38 C.F.R. § 20.1304(c) (1999). FINDINGS OF FACT 1. The veteran's claim is plausible, and the RO has obtained sufficient evidence for an equitable disposition of this claim. 2. Spina bifida, spondylosis, and spondylolisthesis are developmental defects. 3. The superimposed disease or injury to the veteran's back incurred during his military service resulted in chronic back disability diagnosed as degenerative changes of the spine, i.e., slight disc space narrowing of L4-L5 and L5-S1, apart from spina bifida, spondylosis, and spondylolisthesis. CONCLUSIONS OF LAW 1. The veteran has stated a well-grounded claim, and VA has satisfied its duty to assist him in the development of this claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). 2. Service connection for spina bifida, spondylosis, and spondylolisthesis is precluded by law. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303(c) (1999); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 3. Slight disc space narrowing of L4-L5 and L5-S1 were incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual background The veteran's service medical records disclose that on enlistment physical examination in July 1969, he denied back trouble of any kind. Examination of the spine was normal. In December 1977, the veteran presented with complaints of low back pain of one month's duration, which were getting worse lately. There was no history of an injury, and there was more pain in the right low back. There was no radiation or weakness in the low back. Objective examination revealed tenderness of the right low back with slight muscle spasm. Straight leg raising and deep tendon reflexes were normal. The assessment was lumbosacral strain and rule out spondylolisthesis. An x-ray of the lumbar spine revealed spina bifida of the S1 segment. Otherwise, the study was normal. In December 1977, the veteran presented for follow-up of low back pain which was improving with medications. Objective examination revealed no change from the previous examination, and the x-rays were within normal limits. The assessment was lumbosacral strain with muscle spasm. In a physical therapy treatment notation entered the next day, the examiner reported that the veteran had intermittent low back pain for the past seven to eight months which had been constant for the past three to four weeks. He had increased pain upon rising from the sitting position. He denied radicular symptoms. Objective examination revealed tenderness over the right sacroiliac joint. There was no other tenderness and no appreciable muscle spasm. In a subsequent notation from the physical therapy clinic, it was reported that the veteran had been seen for nine treatments from December 1977 through January 1978, and had complete relief of pain. In May 1980, the veteran underwent a periodic physical examination. In the Report of Medical History, he denied recurrent back pain. Examination of the spine was normal. The examiner indicated that the veteran complained of intermittent low back pain when urinating. The condition was asymptomatic. In a medical history questionnaire completed by the veteran in November 1990, he indicated no joint or muscle complaints. In June 1993, the veteran underwent a retirement physical examination. In the Report of Medical History, he indicated no history of bone, joint or other deformity, but reported a history of recurrent back pain. Examination of the spine was normal. In the physician's summary, the examiner indicated that the veteran had a prostate problem in 1991 which was manifested by lower back pain and frequent urination, which was treated with medications and was unresolved. In a November 1993 treatment notation, an examiner reported that the veteran had intermittent low back pain without radiation. The examiner ordered x-rays to rule out degenerative joint disease or degenerative disc disease. A service department report of a radiologic examination conducted in December 1993, one day after the veteran retired from active service, showed complaints of chronic recurring low back pain. The report revealed bilateral L5 spondylolysis with approximately 5 millimeters of anterospondylolisthesis. There was slight disc space narrowing of L4-L5 and L5-S1. The remainder of the bony structures were intact with no fractures or destructive lesions seen. The conclusion was Grade I L5 spondylolisthesis. On VA examination in February 1994, the examiner noted that the veteran complained of recurrent low back pain, but he could not recall any specific injury. Examination of the back revealed no muscle spasm or point tenderness. Flexion was 95 degrees, extension was 30 degrees, lateral flexion was 35 degrees, and rotation was 30 degrees. The diagnoses included a history of recurrent low back pain. A contemporaneous x-ray of the lumbar spine revealed mild left convex lumbar scoliosis, and minimal spondylolisthesis associated with bilateral spondylolysis at L5. The study was otherwise essentially normal. Additional medical records show post-service treatment for back pain. The records show that in October 1994, the veteran complained of a history of back pain and genitourinary complaints, and was diagnosed as having prostatitis. In July 1995, he presented with complaints of low back pain of one week's duration, without trauma or paresthesia. Physical examination revealed positive bilateral pain and lumbar tenderness. The assessment was low back pain, muscular. The veteran thereafter underwent physical therapy for low back pain. The Board deemed that additional medical expertise was needed to render an equitable disposition in this case and in November 1999 requested an IME opinion. In January 2000, Walter B. Greene, M.D., a professor of orthopedic surgery at the University of Missouri Health Sciences Center, provided an expert medical opinion in response to a specific Board request. The physician stated, in pertinent part: I have reviewed the medical records on the above [veteran] and will respond to your questions. The initial complaint of low back pain was December, 1977. At that time the [veteran] was noted to have off and on back pain for 7-8 months. No precipitating event was identified. I was unable to find the x-ray report of the lumbar spine examination at that time, but according to your letter, the x-ray revealed spina bifida of S-1, but was otherwise normal. The back pain apparently resolved with physical therapy. On May 18, 1980, examination, the [veteran] complained of intermittent back pain after urination but no recurrent back pain. The back exam was normal. These complaints seemed to be more likely to be genitourinary in origin rather than musculoskeletal. On June 30, 1993, the [veteran] noted recurrent low back pain but no radicular symptoms. This history was repeated on the November 29, 1993, examination. Radiograph examination of the lumbar spine in December, 1993, demonstrated bilateral L5 spondylolisthesis, and Grade I L5 spondylolisthesis with slight disc space narrowing of L4-5 and L5-S1. On examination in February, 1994, the [veteran] complained of recurrent low back pain but could not recall any specific injury. Spondylolysis and spondylolisthesis typically starts [sic] during the childhood years. It is rare that this is congenital (present at birth). However, most cases of spondylolisthesis are developmental or isthmic. The lesion typically develops in children around 5-6 years of age, and then there is a second peak incidence during the adolescence. When it occurs in adolescence, it is typically associated with teenagers who are very active participants in gymnastics or football. The isthmic lesions result from a defect developing in the pars interarticularis. Spondylolysis has a slight increase of association with spina bifida at S1. However, spina bifida is also common in the general population without associated other conditions. Very uncommonly, spondylolisthesis may develop as a result of an acute fracture. However, these patients have a definite history of an inciting injury. The question is why the x-ray report of December, 1997 [sic], did not notice any spondylolysis. It could be that the report was not totally accurate or, more likely, only an AP and lateral of the lumbar spine were obtained. Only obtaining these two views is routine for screening; however, a spondylolysis may not be evident on those two views. The radiographs in December, 1993, only show 5 mm of anterio-spondylolisthesis. This is not very much slippage of the vertebra and is probably related to the degenerative changes that have occurred in the disc space. Severe back pain does not always develop after spondylolisthesis. Furthermore, if back pain does develop, it may start occurring during the adolescent years or it may not occur until middle-age of the adult years. In the latter situation, it is probably a combination of mild instability related to the spondylolysis exacerbating the normal degenerative changes that occur in the lumbar disc. In my opinion, the spondylolisthesis was present prior to the [veteran] entering the service. The superimposed diseases are probably the normal degenerative changes that occur in the disc with getting older and further exacerbated by increased mobility of the spine related to the spondylolisthesis. II. Legal analysis The veteran's claim for service connection for a back disorder is plausible and, therefore, well grounded. The veteran having stated a well-grounded claim, VA has a duty to assist him in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). In this case, the RO provided the veteran a VA examination. An IME opinion was also obtained. There is no indication of additional records which the RO failed to obtain. Sufficient evidence is of record to fairly decide the veteran's claim. Therefore, no further development is required. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection may also be established for a current disability on the basis of a "presumption" under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a) (1999). Service connection for arthritis may be established based on a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). There is no indication in the evidence that the veteran had problems with his back prior to service. A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he entered into military service except for conditions noted on his entrance examination. 38 U.S.C.A. §§ 1111, 1132 (West 1991); 38 C.F.R. § 3.304(b) (1999). The presumption of soundness can be rebutted by clear and unmistakable evidence that the disorder existed prior to entry into service. 38 U.S.C.A. §§ 1111, 1132 (West 1991); 38 C.F.R. § 3.304(b) (1999). The existence of a back disorder was not noted upon the veteran's entry into service in 1969, and there is insufficient evidence from which the Board could conclude that he had a chronic back disorder prior to that period of service. Therefore, he is entitled to the presumption of soundness. Spina bifida of the S1 segment was diagnosed during the veteran's active service in December 1977, although there have been no medical finding of this condition since that time. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In December 1993, one day after he retired from active service, x-rays showed bilateral L5 spondylolysis with approximately 5 millimeters of anterospondylolisthesis. These conditions were characterized as developmental defects by the IME in January 2000. The IME stated that most cases of spondylolisthesis were developmental or isthmic, and that the isthmic lesions resulted from a defect developing in the pars interarticularis. The IME further indicated that very uncommonly spondylolisthesis may develop as a result of an acute fracture in patients that have a definite history of an inciting injury; however, that was not the case here. As noted above, the veteran has consistently denied a history of any low back injury. Although the IME did not specifically state that spondylolysis and spina bifida were also developmental defects, the opinion refers to spondylolisthesis, spondylosis, and spina bifida (if existent) as common entities occurring together. For example, the IME stated that spondylosis and spondylolisthesis typically start during the childhood years, and that spondylolysis had a slight increase of association with spina bifida at S1. When viewed in context, the IME's opinion indicates that all three conditions are developmental defects that often occur in conjunction with one another. A congenital or developmental defect is not a disease or injury within the meaning of applicable law. See 38 C.F.R. § 3.303(c) (1999). No disability resulting from a congenital or developmental defect may be service connected. Winn v. Brown, 8 Vet. App. 510, 516 (1996). The VA General Counsel has defined a "defect" as an imperfection or structural abnormality. VAOPGCPREC 82-90. The above medical opinion clearly establishes that the veteran's spina bifida, spondylosis, and spondylolisthesis are developmental defects. Therefore, more than an increase in severity during service is required to warrant a grant of service connection. There is a lack of entitlement under the law to service connection for these conditions unless the evidence shows that they were subject to a superimposed disease or injury during military service that resulted in disability apart from the developmental defect. See VAOPGCPREC 82-90; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or the lack of entitlement under the law). There is evidence that the veteran incurred a superimposed back condition during active service, as shown by the service medical records. Diagnoses other than spina bifida, spondylosis, and spondylolisthesis were shown by the service medical records (lumbosacral strain in December 1977) and by the medical evidence shortly after his separation from service in 1993 (slight disc space narrowing of L4-L5 and L5- S1 in December 1993). There is also evidence indicating that the veteran's back symptomatology during service resulted in disability apart from the spina bifida, spondylosis, and spondylolisthesis. As noted above, the x-rays taken only one day after his separation from active service showed slight disc space narrowing of L4-L5 and L5-S1. The IME suggested that the December 1993 radiographs showed 5 millimeters of anterospondylolisthesis, which was not very much slippage of the vertebra and was probably related to the degenerative changes that had occurred in the disc space. The IME concluded that the veteran's superimposed diseases were probably the normal degenerative changes that occurred in the disc with getting older and were further exacerbated by increased mobility of the spine related to the spondylolisthesis. It appears that the IME found that normal degenerative changes of the spine, i.e., slight disc space narrowing of L4-L5 and L5-S1, were superimposed on the developmental spondylolisthesis. Resolving all doubt in the veteran's favor, the Board considers slight disc space narrowing of L4-L5 and L5-S1 to be a superimposed disease for which service connection may be granted. Therefore, service connection for degenerative changes of the spine, i.e., slight disc space narrowing of L4-L5 and L5-S1, is warranted. See 38 C.F.R. § 3.102, 4.3 (1999). ORDER Entitlement to service connection for slight disc space narrowing of L4-L5 and L5-S1, is granted. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals