Citation Nr: 0004067 Decision Date: 02/16/00 Archive Date: 09/08/00 Citation Nr: 0004067 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 96-43 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for spondylosis of L1- L2 2. Entitlement to an increased rating for low back strain, rated 10 percent disabling. (The issue of entitlement to an increased rating for low back strain with degenerative changes of the lumbosacral spine, rated 20 percent disabling, will be the subject of another decision with the same docket number.) REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James J. Dunphy, Counsel INTRODUCTION The veteran served on active duty from April 1971 to August 1985. ORDER TO VACATE In October 1999, the Board of Veterans' Appeals (Board) issued a decision granting service connection for spondylosis of L1-L2, and remanding the issue of an increased rating for a back disorder, manifested by low back strain and spondylosis of L1-L2. Subsequent to this decision, the Department of Veterans Affairs (VA) Regional Office (RO) indicated that Volume II of the claims folder had not been forwarded to the Board for review. In that claims folder, the evidence indicated that in a rating action of May 1998, the RO granted service connection for spondylosis of L1-L2, and granted a 20 percent rating for a disorder now styled as low back strain with degenerative changes of the lumbar spine. The Board may vacate a decision when the veteran is denied due process. 38 C.F.R. § 20.904 (1999). Here, it is clear that there could not have been due process in that the complete record was not before the Board. With regard to the pending increased rating claim, the veteran did not get the benefit of Board review of both claims folders. Accordingly, the October 1999 decision of the Board is vacated in its entirety. The Board will instead review the issue of an increased rating for the veteran's back disorder, to include consideration of the symptomatology resultant from the spondylosis, prior to rendering a decision. V. L. Jordan Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This Order to Vacate is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1998).. Citation Nr: 9930138 Decision Date: 10/22/99 Archive Date: 10/29/99 DOCKET NO. 96-43 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for spondylosis of L1- L2. 2. Entitlement to an increased rating for low back strain, rated 10 percent disabling. ATTORNEY FOR THE BOARD James J. Dunphy, Counsel INTRODUCTION The veteran served on active duty from April 1971 to August 1985. In his substantive appeal (VA Form 9) the veteran requested that the Veterans of Foreign Wars (VFW) represent him at the local board. However, he did not execute a power of attorney in favor of the VFW. The Board of Veterans' Appeals (Board) provided him with the relevant forms in an August 1998 letter. However, he failed to respond to this letter. In the absence of an appropriate power of attorney, the Board finds that the veteran does not have accredited representation. FINDING OF FACT The post service spondylosis is a residual of the injuries sustained in service. CONCLUSION OF LAW Spondylosis, L1-L2, was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(d) (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Of record are reports of treatment afforded the veteran in service for a back disorder. In March 1981, he reported a two week history of back pain. On medical consultation at that time, the impression was low back pain, rule out herniation. He was also afforded an orthopedic consultation in May 1981, at which time he reported low back pain since January 1980. In December 1980, he fell on his buttocks, causing a constant, dull ache in the back. On treatment in May 1981, he stated he fell out of a truck in February 1981, and had back pain since that time. In an August 1981 treatment note, it was reported that X-ray films taken in March 1981 showed a compression fracture. The assessment was status post compression fracture, T12-L1; and paravertebral muscle spasm. Follow-up treatment was required. When the VA examined the veteran for compensation purposes in October 1985, he reported that he slipped and fell out of a jeep while in service. Since that time, he has had chronic pain in the low back area. On examination, gait was normal. There was no muscle spasm or scoliosis, and there was a normal dorsolumbar curve. He had fairly good back flexibility, and backward extension was good. X-ray films of the lumbosacral spine showed that there was normal alignment with no displacement or significant anomaly. The disc space was well maintained, with no degenerative changes in the lumbar axis. The diagnoses included by history, severe contusion, low back, with chronic low back strain. The VA examined the veteran for compensation purposes in February 1996. At that time, he reported the injuries in service, and stated that while he got mildly better, he continued to have central low back pain without leg pain. He was not using a brace, and was not on any medications. He indicated that he had recently lost his job, but stated that this was the result of factors other than his back. On examination, there was no evidence of any postural abnormality or fixed deformity. The musculature of the back was normal, without evidence of paraspinal muscle vesiculations. Forward flexion was possible to the mid tibia, with backwards extension to 30 degrees, right and left lateral flexion to 35 degrees, and tight and left rotation to 90 degrees. There was no objective pain on motion. Straight leg raising was negative bilaterally, and he retained normal motor strength in both lower extremities. Sensation was intact to light touch. X-ray films showed mild degenerative arthritis (spondylosis), worse at L1-L2. There was no evidence of spondylolisthesis or lytic lesions. The diagnosis was mechanical low back pain with possible degenerative disc component secondary to L1-L2 spondylosis, mild in nature. The veteran was again examined for compensation purposes in February 1997. He reported the history of injury in service, and that that he had low back pain since that time. He denied any radiation, and stated that the back pain was worse with any activity. He further gave a history of multiple automobile accidents in 1993, and stated that his back pain was more severe since those incidents. On examination, there was no evidence of postural abnormalities or fixed deformities. Examination of the musculature of the back did not show any spasms, atrophy or spasms. Mild tenderness to palpation was present in the lumbar spine. Forward flexion was possible to 50 degrees, with backwards extension to 10 degrees, lateral flexion left and right to 15 degrees, and rotation left and right to 25 degrees. There was moderate objective evidence of pain with range of motion. Strength was 5/5 throughout all muscle groups in the lower extremities. There were no sensory deficits in the lower extremities. The diagnoses were mild degenerative osteoarthritis of the lumbar spine and moderate mechanical low back pain. The examiner reviewed the claims folder. It was concluded that since spondylosis was present on examination in 1992, it was directly related to the previous injury in 1980. It was the opinion of the examiner, however, that the veteran's symptoms had been exacerbated by the more recent accidents which were not service connected. Although it was impossible to state specifically what proportion of the veteran's pain was exacerbated by the more recent injuries versus how much pain was attributed to his service connected injury, it was felt that at least a portion of the veteran's spondylosis was the direct result of the initial service-connected disability. Analysis Initially, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). By this finding, the Board means that the veteran has presented a claim which is not implausible when the contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In addition, 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). A review of the veteran's service medical records indicates that he sustained an injury in service, when he fell. Post service medical records have shown the presence, both on X- ray and physical examination, of degenerative arthritis (spondylosis). Thus, for service connection to be warranted, there must be evidence to show that there is a relationship between the post service spondylosis and the injury sustained in service. As this issue is medical in nature, the Board must consider the opinions of medical professionals. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). On the most recent VA examination, the examiner was asked to specifically comment on the relationship between the injury in service and the post service spondylosis, taking into consideration the fact that the veteran was injured in automobile accidents after service. The examiner concluded that the spondylosis was directly related to his injury in service. The Board notes that spondylosis was not shown on examination shortly after service. However, service connection may be granted, as noted, if there is evidence demonstrating an etiological link between the post service disability and the incidents of service. In this case, the issue turns not on whether there was any manifestation of the spondylosis within the presumptive period, as there was none, but whether the spondylosis was the result of a documented injury in service. Here, there is no medical evidence demonstrating that the spondylosis was the result of any cause except the injury in service. Accordingly, the Board must find that service connection for the spondylosis is appropriate. ORDER Service connection for spondylosis, L1-L2 is granted. REMAND Also for consideration is the veteran's claim for an increased rating for low back strain. Initially, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). By this finding, the Board means that the veteran has presented a claim which is not implausible when the contentions and the evidence of record are viewed in the light most favorable to the claim. In view of the fact that service connection has been granted for spondylosis of L1-L2, the Board concludes it would be premature to consider the issue of an increased rating for the low back strain without considering the now service- connected spondylosis. Accordingly, the claim is remanded to the RO for the following actions: 1. The veteran should be furnished with an appropriate specialist examination to determine the nature and extent of the back disorder. To the maximum extent possible, the examiner should determine the symptomatology resultant from the service connected low back strain and the residuals of the injury in service on the one hand, and the residuals of post service injuries on the other hand. All appropriate tests should be undertaken, and the findings reported in detail. The criteria in 38 C.F.R. §§ 4.40 and 4.45 should be specifically addressed. The claims folder should be made available to the examiner prior to the studies to review the reports of prior examination and in service treatment. 2. The RO should then adjudicate the issue of the proper rating for the back disorder, considering both the low back strain and the spondylosis of L1-L2. In making this determination, the RO should specifically consider the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1998). When the requested development is completed, if the benefit sought is not granted, the veteran and representative should be provided with an appropriate supplemental statement of the case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The case should then be returned to the Board for further appellate consideration. The purposes of this remand are to obtain additional information and to assist the veteran in the development of the claim. No inference should be drawn regarding the merits of the claim, and no action is required of the veteran until further notified. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. V. L. Jordan Member, Board of Veterans' Appeals