Citation Nr: 0002070 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 98-10 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a back and leg disorder. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD L. J. Nottle, Counsel INTRODUCTION The veteran served on active duty from June 1952 to June 1954. His claim comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). FINDINGS OF FACT 1. The veteran's scoliosis preexisted service. 2. The record contains medical evidence that the scoliosis increased in severity during active service. CONCLUSION OF LAW The veteran's claim of entitlement to service connection for a back and leg disorder is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran claims that he is entitled to service connection for a back and leg disorder because it preexisted service and was aggravated therein. He asserts that a finding of aggravation is warranted on the basis that he had moderate scoliosis when he entered service and marked scoliosis when he was discharged from service. The initial question before the Board is whether the veteran's claim is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). To establish a well-grounded claim for service connection, the veteran must submit: (1) a medical diagnosis of a current disability; (2) medical, 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. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. Epps v. Gober, 126 F.3d 1464, 1467-1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet.App. 498, 506 (1995). A veteran who served for at least six months during a period of war or during peacetime on or after January 1, 1947, is presumed to have been in sound condition when examined, accepted and enrolled in service, except for defects noted at the time of entrance. 38 U.S.C.A. §§ 1110, 1111. According to 38 C.F.R. § 3.304(b) (1999), the term "noted" denotes only such conditions that are recorded in examination reports. The history of pre-service existence of conditions reported at the time of the examination does not constitute a notation of such conditions, but will be considered together with all the other material evidence in questions as to inception. 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet.App. 238, 245-47 (1994) (holding that a disorder was not "noted" as defined by the law so as to rebut the presumption of soundness where there were references on two entry examinations of a childhood history of the disorder, but the disorder was not found by the examiner on examination). Clear and unmistakable evidence demonstrating that the injury or disease existed prior to service rebuts the presumption of soundness. 38 U.S.C.A. § 1111. The U. S. Army evaluated the veteran in December 1951, six months prior to induction, and in June 1952, the day before induction. During the first evaluation, the examining physician noted no spine or leg abnormalities. During the second evaluation, the examining physician noted that the veteran had moderate scoliosis and lordosis. Based on this finding, the veteran is not presumed to have been in sound condition with regard to his back when he entered service. A preexisting disease will be presumed to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C.A. § 1153. Clear and unmistakable evidence is required to rebut the presumption of aggravation when the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). During a separation examination in May 1954, the examining physician noted that the veteran had marked scoliosis of the lumbar spine. This finding clearly reflects that the veteran's scoliosis increased in severity from moderate to marked during active service. Inasmuch as the record does not contain a medical opinion that the increase was due to the natural progression of the scoliosis, the veteran's scoliosis must, at this point, be presumed to have been aggravated during service. However, as noted above, the presumption of aggravation may be rebutted. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993) The Board also notes that the medical evidence of record discloses that the veteran currently has multiple disorders involving his back and legs, most of which have not been linked by a medical professional to the veteran's period of active service. However, as this evidence establishes that at least one of these disorders preexisted service and was aggravated therein, the Board finds the veteran's claim for service connection for a back and leg disorder well grounded. For the reasons explained below, it also finds that additional development is necessary to decide the merits of the claim. ORDER Evidence of a well-grounded claim for service connection for a back and leg disorder having been submitted, the appeal is granted to this extent only and subject to the development requested below. REMAND Post-service medical records from Steven M. Lau, M.D., Garret Van Brocklin, P.T., Richard C. Sposato, M.D., D. Gloor, M.D., Gary L. Pattee, M.D., Peter E. Howe, M.D., Gage County Family Medical Clinic, P.C., and Bryan Memorial Hospital reflect that the veteran has been treated for multiple complaints of the back and legs since 1985. Physicians have attributed these complaints to a variety of disorders including diabetes, diabetic polyneuropathy, Grave's disease, degenerative arthritis, degenerative disc changes, possible stenosis, scoliosis, spondylolysis, spondylolisthesis, and lower extremity claudication syndrome. However, no physician has definitively linked any of these disorders to the veteran's period of active service. In August 1997, Dr. Sposato noted that the veteran's in-service scoliosis may be an important contributing factor in any spinal stenosis found, but is not part of the picture if the veteran's claudication is due to diabetes. As the record stands, the Board is unable to determine whether the veteran's back and leg disorders are related either to the in-service aggravation of his scoliosis or otherwise to his period of active service. A comprehensive medical opinion is thus needed. Therefore, in order to give the appellant every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary. Accordingly, this case is REMANDED for the following action: The RO should afford the veteran an examination with an appropriate physician for the purpose of ascertaining the nature and etiology any back and leg disorders present, and to obtain an opinion as to whether the veteran preexisting scoliosis chronically worsened during service or whether any increase in severity was the natural progress of the disorder. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. Following the examination and a review of all pertinent medical records associated with the claims file, the examiner is requested to offer an opinion as to whether the scoliosis that was present upon the veteran's entry into service chronically worsened during service or whether any increase in severity during service represented the natural progress of the disorder. In this regard, the examiner is request to comment on the notations in service medical records that the veteran's scoliosis was "moderate" upon entering service and "marked" upon separation from service and indicate whether these findings represented an increase in severity of the disorder. Lastly, if the opinion is that the preexisting scoliosis increased in severity during service, the examiner is requested to specify which currently diagnosed disorders are causally or etiologically related to the scoliosis. All opinions must be supported by a written rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (1999), copies of all pertinent medical records in the veteran's claims file or, in the alternative, the claims file, must be made available to the examiner for review. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the appellant and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. No action is required of the appellant until he is notified. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals