BVA9501195 DOCKET NO. 93-04 770 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for cervical spine strain. 2. Entitlement to service connection for lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from May 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a June 1992 rating decision of the Regional Office (RO) which denied the veteran's claims of entitlement to service connection for cervical spine and lumbosacral strain. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection should be established for cervical spine and lumbosacral strain. He asserts that they are directly due to his service-connected lower extremity disabilities. He refers to a statement from a Department of Veterans Affairs (VA) physician in support of his claim. 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 file. 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 record supports service connection for cervical spine and lumbosacral strain. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Service connection is in effect for residuals of a fracture of the right tibia and talus with fusion and subtalar arthritis, post traumatic status of the right knee, residuals of a fracture of the left talus with post traumatic arthritis of the left ankle and sciatic neuritis. 3. The competent medical evidence of record establishes that the recently diagnosed cervical spine and lumbosacral strain are medically related to the veteran's service-connected lower extremity disabilities. CONCLUSIONS OF LAW 1. Cervical spine strain is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.310(a) (1993). 2. Lumbosacral strain is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The initial question before the Board is whether the veteran has submitted a well-grounded claim as required by 38 U.S.C.A. § 5107. The United States Court of Veterans Appeals (the Court) has held that a well-grounded claim is one which is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In addition, in Tirpak v. Derwinski, 2 Vet.App. 609 (1992), the Court held that a claim must be accompanied by evidence (emphasis in original). In this case, the veteran's statements and the recent opinion of a VA physician concerning the onset of his cervical spine and lumbosacral strain are sufficient to conclude that his claims are well-grounded. Accordingly, no further development is necessary in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The veteran has been granted service connection for residuals of a fracture of the right tibia and talus with fusion and subtalar arthritis, post traumatic status of the right knee, residuals of a fracture of the left talus with post traumatic arthritis of the left ankle and sciatic neuritis. The veteran has not argued, and the evidence does not otherwise establish, that cervical spine or lumbosacral strain was present in service. Rather, he alleges that he developed these disabilities as a direct result of his service-connected lower extremity disabilities. The record reflects the fact that the veteran was afforded examinations by the VA on approximately five occasions between 1972 and 1979. He was noted to walk with a right-sided limp on examination as early as 1972, favoring his left ankle also "to a certain amount." In this regard, it is significant to point out that the limp has been variously described as "marked" or "considerable." During the VA examination in August 1979, it was reported that the veteran ambulated in a custom built shoe with a 1 1/2 inch thick sole and that he had a custom-made polypropylene orthosis to help stabilize the ankle. The veteran described lower back discomfort. An examination at that time disclosed that when the veteran attempted to ambulate without the use of his shoe or orthosis, because of the equinus position, he walked on the toes on the right side. He did not walk in the normal heel contact, foot-flat, heel-off, toe-off pattern. Therefore, his gait was inefficient and somewhat slow. With the benefit of the built-up shoe and the ankle orthosis, his gait was somewhat improved, although it was not a smooth gait. In a statement dated in February 1980, a VA physician noted that the veteran's right ankle was solidly fused, that he had a combination of an ankle foot orthosis and a specially built-up shoe and that, with these, he had a fairly adequate gait . The physician commented that the veteran had recently begun to develop back pain, as well as some pain radiating down his right leg above the previously fused ankle. The symptomatology suggested a right sciatic nerve irritation, although there were no firm findings at that time other than discomfort in the back and the radiating pain. The physician opined that the veteran's back problems were directly related to the abnormality of his gait which had existed since the in-service injuries. VA outpatient treatment records dated in 1990 and 1991 have been associated with the claims folder. When the veteran was seen in March 1991, his complaints included neck pain and low back pain which started in 1971, following the in-service injury. An examination disclosed muscle spasms of the cervical and lumbosacral muscles. An electromyogram in August 1990 was reported to reveal right peroneal neuropathy. There was no evidence of lumbosacral radiculopathy. Magnetic resonance imaging of the cervical spine in August 1990 showed right lateral and central herniated nucleus pulposus. The assessments were cervical degenerative disc disease, chronic C5-6 radiculopathy, chronic post-traumatic low back pain and right peroneal neuropathy. The examiner noted that the low back pain was due to abnormal posture secondary to functional shortening of the right leg. He opined that it was his impression that both conditions were most likely related to the trauma sustained in service. When the veteran was seen in a VA outpatient treatment clinic in July 1991, he complained of "years" of neck pain. An examination of the neck showed limited extension and motion to the left secondary to pain in the right neck radiating to the right shoulder. Forward flexion of the back was limited due to pain. The assessments were degenerative joint disease with bulging cervical disc and low back pain, both apparently secondary to past trauma. The veteran was afforded a VA orthopedic examination in February 1992, at which he stated that since the injury in service, he had always had neck pain. The examiner noted that the file contained a statement in which the veteran had related in 1991 that the pain began three years earlier. The veteran also related that he had experienced low back pain since the fall in service. An examination of the neck revealed range of motion be be normal, except for some decreased left lateral flexion and left rotation. The veteran complained of tenderness in the posterior neck. An examination of the lower back revealed slight tenderness, but no significant muscle spasm. It was noted that a CT scan of the cervical spine in 1990 suggested a right postero-lateral herniated disc, but that magnetic resonance imaging was completely normal. X-ray studies of the lumbar spine disclosed moderate degenerative joint changes. The impressions were cervical spinal strain manifested by complaints of pain, tenderness, and slight limitation of motion; and lumbosacral strain, manifested by complaints of pain and tenderness. The examiner commented that there was no question that, typically, walking can produce a strain on the spine and, over a period of many years, it was possible that the veteran's complaints in the cervical and lumbar spine might be due to his service-connected injury. In May 1992, the veteran's claims folder was referred to a physician at the RO for review and comment. The RO physician determined that there was no evidence of low back symptoms until 1979, when the veteran manifested limited forward flexion and limited lateral rotational flexion. The RO physician concluded that the relationship between the veteran's low back and neck disabilities, as secondary to the gait disturbance caused by his service-connected disabilities, was entirely speculative. The evidence summarized above discloses that several VA physicians have concluded that the veteran's cervical spine and lumbosacral spine disorders are etiologically related to his service-connected lower extremity disabilities. Following the most recent VA orthopedic examination in February 1992, the examiner specifically indicated that the strain from walking could have cause the spinal disorders. The Board acknowledges that a RO physician reviewed the file and concluded that any such relationship would be speculative. However, the undersigned notes that several prior VA treating physicians are on record in this case concluding that the veteran's cervical spine and low back problems are related to the abnormality and alteration of his gait due to service-connected causes. The conflicting medical opinions in this case suggest that the evidence is, at the very least, in relative equipoise as to the etiology of the veteran's cervical and lumbosacral spine disorders. Under the benefit of the doubt rule, embodied in 38 U.S.C.A. § 5107(b), in order for a claimant to prevail, there need only be an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet.App. 49, 54 (1990). In this case, such a conclusion cannot be made. Accordingly, the Board finds that service connection for cervical spine and lumbosacral strain is warranted. ORDER Service connection for cervical spine and lumbosacral strain is granted. J. F. GOUGH 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.