Citation Nr: 0004927 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 96-49 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a back disorder manifested by pain, muscle cramping and numbness. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD P.B. Werdal, Counsel INTRODUCTION The veteran served on active duty from 1956 to 1986. FINDINGS OF FACT 1. Competent medical evidence that the veteran currently experiences manifestations of a back disability, including pain, muscle cramping and numbness has been presented. 2. Competent medical evidence that the veteran's current back disability manifested by pain, muscle cramping and numbness was caused by his service-connected left hip disability has been presented. CONCLUSION OF LAW Service connection for a back disability manifested by pain, muscle cramping and numbness that is proximately due to the veteran's service-connected left hip disability is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.310 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background The veteran served on active duty from 1956 to 1986. He has been awarded service connection for postoperative bulbous urethral stricture, bilateral hammertoes, bilateral high frequency hearing loss, tinnitus, and a left hip disability that was originally service-connected as traumatic arthritis, but that progressed to a point where, in 1988, he underwent a total left hip replacement. He argues that he sustained an injury to his back during service and seeks service connection on a direct basis, or, in the alternative, that he incurred a back disability as the result of the altered gait he acquired after injuring his left hip in service. The veteran's service medical records contain evidence dated in May 1963 of treatment for a pulled back muscle, in October 1973 for muscle strain of the lumbosacral spine, and in June 1981 for mechanical low back pain. However, the records contain no indication that those instances of treatment were for anything other than acute and transitory conditions. On none of his periodic medical examinations did the veteran report recurrent back pain, nor were abnormalities of the spine noted upon examination in service. Likewise, there is no post-service medical evidence of a back problem during the one-year period following service. In January 1996 the veteran claimed service connection for a disability manifested by severe pain related to a herniated disk in his lower back. He reported his doctors told him the disk problem was related to arthritis that he developed in service. Private medical records dated in 1996 revealed mild degenerative changes of the apophyseal joints of L4, L5 and S1 vertebra, and intervertebral disc space narrowing at the L2-3 level. Upon examination, deep tendon reflexes were essentially normal, with only a very slight suggestion of a reduction of the left ankle jerk. Decreased sensation to pin and light touch of the left calf and questionably on the lateral aspect of the left foot was noted, as was minimal discomfort in the posterior thigh and calf to palpation and straight leg raising on the left. The examiner attributed the numbness and pain in the left lower extremity to sciatica or a lumbosacral radiculopathy. Subsequent records reflect the veteran was found to have a free-fragment disc involving the S1 root on the right side. He was also found to have considerable degenerative changes in spinal stenosis, particularly at the L4-5 level, and levels above the disc rupture. Shortly thereafter the veteran underwent a lumbar microdiskectomy of L5-S1 on the left. A March 1996 Department of Veterans Affairs (VA) compensation and pension examination noted the veteran had recently undergone the diskectomy and was doing very well. In a June 1996 VA Rating Decision, service connection was denied for postoperative residuals of a diskectomy of the lumbosacral spine. The veteran expressed disagreement with that determination in August 1996, indicating he believed he was treated for back problems during service; he also stated that it was inconceivable to him how the degenerative changes in his spine could be found nonservice-connected, as he had spent almost all of his adult life in military service. He added that he continued to experience left leg numbness following his diskectomy, and that the numbness had worsened, not improved. A Statement of the Case was furnished to him in September 1996. In November 1996 the veteran filed a substantive appeal in which he argued that he was diagnosed with arthritis in his hip during service, and that he now has arthritis in his back so service connection should be granted for arthritis of the back, and everywhere else arthritis manifests itself in his body. He asserted that the spinal stenosis with which he was diagnosed following service was causally related to the inservice arthritis. He also asserted that the disk problem that required the 1996 back surgery began in service. At a hearing before RO personnel in February 1997 the veteran added that he had received undocumented medical care for low back problems during service in Korea, as well as two documented instances when he was treated in service at The Presidio for low back pain. He added that during service he also experienced recurring back pain that resolved without treatment, and sustained an undocumented injury in a parachute jump and a helicopter accident. In addition, the veteran testified at page 5 of the transcript that his back problem could have been caused by the altered gait he acquired as the result of his left hip problem. He described several instances when his legs gave out; he first attributed that to his left hip arthritis, but then asserted it might be the result of his back problem. During an April 1997 VA examination a physician opined that there was no relationship between the veteran's left hip disability and the diskectomy. He added that the left leg shortening that occurred because of the left hip replacement "may or may not impact the forces across the lower back and may be a competent producing cause of some residual back symptomatology in the form of pain." The veteran was informed in Supplemental Statements of the Case provided to him in October 1998 and March 1999 that his claim remained denied. In a May 1999 hearing before the undersigned the veteran repeated his assertion that there was a causal relationship between his back disability and his hip disability. He explained that he continues to suffer from cramping in his legs and feet that he attributes to neurological problems associated with his ruptured disc, as well as periodic acute sciatic pain in his left hip and leg. He also reported that medical personnel had told him that it was possible that his back disability was the result of his altered gait, but that no medical personnel told him his back condition could be the result of the injury that caused the hip problem, or that his back condition is the result of his hip replacement. The undersigned encouraged the veteran to submit evidence from medical personnel that supported his assertion that his altered gait caused his back problem. Such evidence was received in July 1999. Drs. W and H opined that, following 13 years of limping, it was highly probable that there would be skeletal changes which would create orthopedic and/or neurological problems in later years. Dr. G opined that the veteran's back disability began in service. Dr. P opined that an abnormal gait over many years can contribute to some structural damage in the spine region. Applicable Laws and Regulations For disability resulting from personal injury suffered in the line of duty, or for aggravation of a preexisting injury suffered in the line of duty, the United States will pay compensation to any veteran thus disabled and who is discharged or released under conditions other than dishonorable from the period of service in which said injury was incurred, or preexisting injury was aggravated. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. A person who submits a claim for 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. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a) (West 1991). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Generally, for a claim to be well grounded, a claimant must submit each of the following: (1) a medical diagnosis of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the in-service injury or disease and the current disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table), and Epps v. Gober, 126 F. 3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well-grounded claim set forth in Caluza, supra), cert. denied sub nom. Epps v. West, 141 L.Ed. 2d 718, 118 S. Ct. 2348 (1998) (mem.). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Like all claims, a claim for secondary service connection must be supported by evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Buckley v. West, 12 Vet. App. 76, 84 (1998). With regard to a claim for secondary service connection, a claimant must provide competent evidence that the secondary condition was caused by the service-connected condition. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516- 17 (1995). Jones v. West, 12 Vet. App. 383 (1999). Analysis The veteran asserts he suffers a disability of the back that should be afforded service connection. The record contains medical evidence of the presence of a back disability manifested by pain, muscle cramping and numbness. Although there is no medical evidence in service of the presence of such a disability, there is competent evidence that a service-connected disability, the left hip disability, caused a back disability by altering the veteran's gait over a long period. That competent evidence is found among the medical opinions of Drs. H, W and P. Based on the foregoing, the Board of Veterans' Appeals (Board) finds that the veteran has presented evidence sufficient to justify a belief by a fair and impartial individual that this claim is well grounded. 38 U.S.C.A. § 5107; Jones; Caluza. The Board must now weigh the positive and negative evidence and ascertain whether such evidence is in equipoise or whether the positive evidence outweighs the negative evidence to decide whether service connection should be granted. The negative evidence regarding this claim consists of the April 1997 VA examination in which the physician opined that there was no relationship between the veteran's left hip disability and the diskectomy. He did not, however, address whether there was a relationship between the left hip disability and the back pain, muscle cramping and numbness of which the veteran complains. That examination report also contains positive evidence because the left leg shortening that occurred because of the left hip replacement "may or may not impact the forces across the lower back and may be a competent producing cause of some residual back symptomatology in the form of pain." (emphasis added). Additional positive evidence that the veteran has a back disability secondary to his service-connected hip disability includes the medical opinions of Drs. H, W and P discussed above. Following a careful consideration of the medical evidence of record, the Board finds the positive evidence outweighs the negative evidence. As a result, the record supports a conclusion that the veteran currently has a back disability manifested by pain, muscle cramping and numbness, and competent medical evidence that such disability is proximately due to the veteran's service-connected left hip disability. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. ORDER Service connection for a back disability manifested by pain, muscle cramping and numbness is granted. John E. Ormond, Jr. Member, Board of Veterans' Appeals