Citation Nr: 0000550 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 98-06 663A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a lumbar, thoracic and cervical spine disorder with paresthesia syndrome (also claimed as myofascial pain syndrome). 2. Entitlement to service connection for thoracolumbar and lumbar scoliosis (also claimed as a pelvic developmental abnormality). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The veteran had active service from October 1984 to September 1987 with additional periods of active duty for training and/or inactive duty for training. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 1998 rating decision of the Roanoke, Virginia Regional Office (RO) which denied the benefits sought. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. There is no competent evidence linking any present lumbar, thoracic, or cervical spine disorder with paresthesia (or myofascial pain syndrome) to the veteran's active service. 3. There is no competent evidence that any current thoracolumbar/lumbar scoliosis is related to disease or injury in service. CONCLUSIONS OF LAW 1. The claim for entitlement to service connection for a lumbar, thoracic and cervical spine disorder with paresthesia syndrome (also claimed as myofascial pain syndrome), is not well-grounded. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999). 2. The claim for entitlement to service connection for thoracolumbar and lumbar scoliosis (also claimed as a pelvic developmental abnormality), is not well-grounded. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, it is necessary to determine if the veteran has submitted well-grounded claims within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999), and if so, whether the Department of Veterans Affairs (hereinafter "VA") has properly assisted him in the development of his claims. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that: A veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991). See Tirpak v. Derwinski, 2 Vet.App. 609, 610- 611 (1992). If a claim is not well- grounded, the Board does not have the jurisdiction to adjudicate that claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). The Court has held that in order for a claim for service connection to be well-grounded, there must be (1) competent evidence of a current disability; (2) proof as to incurrence or aggravation of a disease or injury in service; and (3) competent evidence as to a nexus between the inservice injury or disease and the current disability. See Caluza v. Brown, 7 Vet.App. 498 (1995). In the instant appeal, the veteran is seeking service connection for a lumbar, thoracic and cervical spine disorder with paresthesia syndrome (also claimed as myofascial pain syndrome) and for thoracolumbar and lumbar scoliosis (also claimed as a pelvic developmental abnormality). As discussed below, the Board finds that those claims are not well- grounded, and that, therefore, there is no further duty to assist the veteran with development of his claims. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 1991 & Supp. 1999). Active service includes any period of active duty for training during which the veteran was disabled from disease or injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24) (West 1991 & Supp. 1999). Where a veteran served ninety (90) days or more during a period of war or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (1999). The disease entity for which service connection is sought must be "chronic" as opposed to merely "acute and transitory" in nature. 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 where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Where 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) (1999). 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) (1999). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. The specific finding requirement that an increase in disability is due to the natural progress of the condition will be met when the available evidence of a nature generally acceptable as competent shows that the increase in severity of a disease or injury or acceleration in progress was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing circumstances, conditions and hardships of service. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during wartime service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during wartime service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to wartime service. 38 U.S.C.A. § 1153 (West 1991 & Supp. 1999); 38 C.F.R. § 3.306 (1999). I. Service Connection for a Lumbar, Thoracic, and Cervical Disorder with Paresthesia Syndrome (also Claimed as Myofascial Pain Syndrome). Service medical records for the veteran's period of active service indicate that at the time of a February 1986 examination, there were notations that the veteran's spine and other musculoskeletal system were normal. On May 1987 examination, the veteran indicated that he suffered from recurrent back pain. His spine and other musculoskeletal system were normal. A June 1987 entry noted that the veteran was treated for a headache and back pain. An August 1987 treatment entry reported that the veteran had complaints of lower back pain which radiated into his legs when sitting or lying down associated with an episode of gastroenteritis. A May 1990 treatment entry, apparently during reserve duty, noted that the veteran complained of back pain. It was observed that the veteran had a slight rightward curvature in the lumbar area with no tenderness to palpation. The assessment was chronic low back pain possibly secondary to scoliosis. There was no report of injury at the time. On February 1992 examination for reserve service purposes, the veteran checked that he had recurrent back pain. It was noted that he had been told that he had scoliosis of the spine. The veteran complained of back pain with increased activity and lifting. The February 1992 examination report also included notations that the veteran's spine and other musculoskeletal system were normal. Private treatment records dated from August 1988 to August 1990 include an August 1988 report from Samson S. Velena M.D., noting that the veteran was initially seen for injuries sustained in a work related injury of August 9, 1988. The diagnoses included thoracolumbar scoliosis. An August 1988 report from the Jefferson Industrial Medical Clinic noted that the veteran was initially seen six days earlier. He reported that when he began carrying mail in April 1988, he started to have gradually worsening "tingliness" in the left posterior chest wall area. He stated that he had been carrying a 50 pound mail bag on his right shoulder, and also carried mail on his left arm. It was observed that just two days prior to his initial consultation, the veteran complained of pain in the left posterior area plus numbness of the toes and fingers. The examiner indicated that the veteran had been noted to have muscular spasms and tenderness in the left posterior area of the muscular group just to the left of the thoracic spine in the middle third portion, especially in the area of the Rhomboid. There was also frank evidence of scoliosis. An additional August 1988 report from the clinic listed diagnoses including sprain and strain of the upper back area from mail carrying and underlying scoliosis. The examiner stated that the diagnosis of sprain and strain was definitely caused by the veteran's employment. The examiner noted that the veteran had not been having pain until he was employed at the Postal Service. The veteran reported that he had a physical examination before being employed. The examiner remarked that the underlying scoliosis was probably missed at that time. The examiner also commented that the scoliosis was very easily apparent on physical examination. The examiner stated that he did not feel such problem was caused by the veteran's job and it was just unlikely that such a problem would develop all of a sudden. The examiner commented that he had a feeling that such existed since the veteran's pre-adolescence stage and was probably already there and missed by the physical examination before he entered service. An August 1990 disability certificate indicates that the veteran's scoliosis may have been worsening. It was noted that the cause was undetermined. An October 1988 neurological summary from S. K. Nandipati, M.D., noted that the veteran worked as a postal mail carrier since April 1988 and that he started complaining of some minor pain after carrying a full load of mail until August 1988, when he experienced severe low back pain and left shoulder pain associated with tingling and numbness of the fingers and toes on the right side. The examiner indicated an impression of thoracolumbar scoliosis, lumbar strain, upper thoracic cervical strain and tingling and numbness with the need to rule out neuropathy. It was noted that it was possible that the veteran's preexisting scoliosis, which was asymptomatic, became symptomatic after he started carrying heavy mail, with pressure on the spine, muscles and ligaments. Treatment records dated from March 1990 to December 1990 from the Dewitt Army Community Hospital at Fort Belvoir indicate that the veteran was treated for disorders including of the back. A March 1990 entry noted that the veteran had a diagnosis of scoliosis by civilian physicians. The veteran complained of a history of upper back pain. The assessment was scoliosis, mechanical back pain. A December 1990 entry also noted a diagnosis of scoliosis and an assessment of lower back syndrome. Private treatment records dated from March 1995 to April 1996 include the report of a March 1995 initial medical evaluation from Washington Work Incorporated, when it was noted that the veteran had a chief complaint of left shoulder and low back pain with tingling in the left hand. It was noted that three weeks after becoming a letter carrier, the veteran developed back pain which worsened with continued letter carrying. The diagnostic impression was scoliosis and thoracolumbar strain. A May 1995 treatment entry from Dr. Velena indicated an assessment of muscular pain. A January 1996 statement from P. T. Pham, M.D., noted that the veteran had been under his care since August 1992. Dr. Pham stated that in his opinion the veteran was suffering from fibromyalgia syndrome. An April 1996 report from Alben G. Goldstein, M.D., noted that the veteran was seen with left shoulder, back and left leg discomfort. Dr. Goldstein opined that the veteran suffered from myofascial pain and had an inherently unstable back. Dr. Goldstein stated that problems related to carrying mail had brought out such problem. On VA general medical examination in October 1997, it was noted that the veteran had a low back condition characterized by pain in his left arm, left leg and left back, with numbness in his left arm and left leg. The veteran also reported numbness in his left fingers and left toes. The examiner indicated a diagnostic summary of paresthesia syndrome of uncertain etiology, no diagnosis; low back pain, probably related to muscle strain, scoliosis and left leg length discrepancy; leg length discrepancy; minimal facet hypertrophy or degenerative and joint disease at L5-S1 without degenerative disc disease and with no spondylosis; and lumbar pain, in part due to lumbar strain and in part due to early degenerative joint disease at L5-S1. At a May 1999 hearing before a member of the Board, the veteran testified that he suffered an injury in 1987. He stated that he was coming back from a road march and suffered severe pain in his back and tingling in his right hand, left hand and toes. No X-rays were taken at that time. He indicated that immediately after service he began working for the Post Office and experienced the same problems. He related that his condition was diagnosed in June or July 1988 and that he was told by a physician that it was caused by military service. The record does not include objective evidence to support a finding that the veteran's claimed lumbar, thoracic and cervical spine disorder with paresthesia (also claimed as myofascial pain syndrome) became manifest or originated during service or that arthritis was manifested within one year following service separation. The veteran's service medical records indicate that on May 1987 examination, he reported recurrent back pain, but his spine and other musculoskeletal system were noted to be normal. In June 1987, back pain was reported. In August 1987, he had complaints of low back pain radiating into his legs when sitting or lying down. The assessment was gastroenteritis. The first clinical indication of a chronic lumbar, thoracic or cervical spine disorder, was in an August 1988 report from Dr. Velena, almost a year after the veteran's separation from service, when it was noted that the veteran was initially seen for injuries sustained in a work related injury. The diagnoses were thoracolumbar scoliosis and tendinitis of the left shoulder. In fact, nearly all postservice medical evidence of record attributes the veteran's lumbar, thoracic, and cervical spine complaints/disability to his duties as a mail carrier and to an underlying (and developmental) scoliosis which became more prominent with the mail carrier work. The evidence does not reflect any injuries in service (or, for that matter, during active duty for training in the reserves). In short, there is no medical evidence/opinion that relates any current back disorder to service, and no evidence of a back injury with chronic residuals during service. The Board observes that the veteran has alleged in testimony and statements that his claimed lumbar, thoracic and cervical spine disorder with paresthesia syndrome (also claimed as myofascial pain syndrome) originated during service. However, as a layperson, he is not competent to opine regarding medical etiology. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). It is within the province of the veteran to report that he suffered back problems or injuries during his periods of service, but not to relate current disability to such problems/injuries. In the absence of sufficiently probative evidence establishing a nexus between any current lumbar, thoracic or cervical spine disorder with paresthesia syndrome (or myofascial pain syndrome) and service, the claim is not plausible and, therefore, not well-grounded. Further, the Board finds the information provided in the statement of the case and other correspondence from the RO sufficient to advise the veteran of the elements necessary to complete his application for service connection. Moreover, the veteran has not put the VA on notice of the existence of any specific, particular piece of evidence that, if submitted, might make the claim well-grounded. Robinette v. Brown, 8 Vet.App. 69 (1995). Although the RO did not specifically state that it denied the veteran's claim on the basis that it was not well grounded, the Board concludes that this was not prejudicial to the veteran. In fact, this accorded him the benefit of a broader review. II. Service Connection for Thoracolumbar and Lumbar Scoliosis (also Claimed as a Pelvic Developmental Abnormality). The veteran's thoracolumbar and lumbar scoliosis was not manifested in service, nor is it shown by any competent evidence to have originated in, or to be related to, service. In fact, the medical evidence establishes that in all likelihood the scoliosis had been present in mild form since, at least, the veteran's adolescence, and that it was exacerbated by his mail carrier civilian employment. Although congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation providing compensation benefits (38 C.F.R. § 3.303(c)), pathology superimposed on such disability during service may be service connected. Here, there is no competent evidence that during service pathology was superimposed on any preexisting scoliosis, nor is there competent evidence of any nexus between current back disability manifested by scoliosis and service. In the absence of such evidence, the claim is not well grounded. See Caluza, supra. The Board observes that the veteran has alleged in testimony and statements on appeal that his thoracolumbar and lumbar scoliosis (also claimed as a pelvic developmental abnormality) originated during his periods of service or was aggravated during service. However, as a layperson, he is not competent to opine regarding medical etiology. See Grotveit and Espiritu. The information provided in the statement of the case and other correspondence from the RO are sufficient to inform the veteran of the elements necessary to complete his application for service connection, well ground his claim. He has not put VA on notice of any specific evidence that, if submitted, might make the claim well-grounded. Robinette v. Brown, 8 Vet.App. 69 (1995). Although the RO did not specifically state that it denied the veteran's claim on the basis that it was not well grounded, this was not prejudicial to the veteran, but merely accorded him the benefit of a broader review. ORDER Service Connection for a lumbar, thoracic and cervical spine disorder with paresthesia syndrome (also claimed as myofascial pain syndrome), is denied. Service Connection for thoracolumbar and lumbar scoliosis (also claimed as a pelvic developmental abnormality), is denied. GEORGE R. SENYK Member, Board of Veterans' Appeals