BVA9503020 DOCKET NO. 93-06 797 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder, as secondary to a service connection right leg below-the-knee amputation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Wirt, Associate Counsel INTRODUCTION The veteran served on active duty from July 1963 to November 1968. Service connection for a back disability secondary to service connected disability was denied by rating decisions in May 1986 and July 1990. The veteran was informed of the determinations by letters in June 1986 and August 1990, respectively. He did not timely appeal. This appeal arises from an August 1991 rating decision of the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO), which determined that there had not been submitted new and material evidence sufficient to reopen the claim for service connection for a low back disorder secondary to his service-connected right leg below-the-knee amputation. The Hearing Officer's decision in July 1992 reopened the claim. The Board will review the claim on its merits. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his low back condition was caused by his service-connected right leg below-the-knee amputation and resultant altered gait. 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 evidence is in relative equipoise, resulting, with application of the benefit of the doubt rule, in the grant of entitlement to service connection for a low back disorder as proximately due to or the result of a service-connected right leg below-the-knee amputation. FINDINGS OF FACT 1. The veteran is service connected for a right leg below-the-knee amputation, currently evaluated as 50 percent disabling. 2. The veteran's low back disorder was caused by his service-connected right leg below-the-knee amputation. CONCLUSION OF LAW The veteran's low back condition is proximately due to or the result of his service-connected right leg below-the-knee amputation. 38 C.F.R. § 3.310(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the statutory duty to assist mandated by 38 U.S.C.A. § 5107(a). The veteran has appealed a denial of entitlement to service connection for a low back condition as secondary to his service-connected right leg below-the-knee amputation. Service connection may be established for disabilities resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1994). Service connection may also be established for disabilities that are proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The veteran was injured in service in December 1966, when 7 tons of steel plates fell on his right leg, causing a crushing injury of his right ankle and foot. After several surgical and other treatments, including a complete talotibial fusion, he was given a medical discharge in 1968. Post service, he underwent several additional surgeries and procedures on the ankle. In April 1977, the veteran's right leg was amputated below the knee at the VA Medical Center (VAMC) in Pittsburgh, Pennsylvania. Following the amputation, he had three additional surgeries, in February 1980, December 1980 and August 1981, respectively, to excise neuromas that had developed on his stump. He currently wears a prosthesis. The veteran testified at his hearing that he first began experiencing low back pain in 1981, around the time that he was having difficulty with the neuromas. Hr'g Tr. at 4 (March 24, 1992). His post-service medical records from the Gainesville, Florida, VAMC first show a complaint of low back pain in March 1982. He reported pain in the lumbosacral area, right side greater than left, with numbness in his left big toe. His spinal mobility was very limited in forward and lateral flexion, right less than left. He was noted to have lumbar scoliosis to the right. X-rays reportedly showed some posterior settling of the L5 vertebra on the sacrum and possible foraminal encroachment of L5-S1. He was instructed in flexion exercises, the use of ice and body mechanics and positioning. The examiner commented that it was doubtful that his right below-the-knee amputation was causing the back problem. The veteran complained of low back pain again in December 1982 at the VAMC in Gainesville, but no specific findings or diagnoses were made. He was seen in March 1983 as well, and it was noted that his back pain was still of the same degree as previously. The veteran's private physician, Louis J. Radnothy, D.O., submitted a letter on the veteran's behalf in November 1985. Dr. Radnothy indicated that he had treated the veteran since 1984. Dr. Radnothy noted that the veteran had had intermittent bouts of low back pain with radiation down his left leg, and commented that this pain was "undoubtedly" related to structural imbalance resulting from his right leg amputation. The veteran underwent a VA examination in March 1986. A history of low back pain since 1982 was noted. The veteran reportedly walked with a "prosthetic gait" on the right. He stood with a straight spine, his pelvis was level and both lower extremities were reported to be of equal length. Forward flexion was measured to 60 degrees, extension to 20 degrees and lateral bending to 20 degrees; all movements were made with complaints of distress in the lumbosacral region. Straight leg raising was to 90 degrees bilaterally without complaint of distress. The Patrick test was negative, and the Ely test caused distress in the lumbosacral region. There was tenderness on deep palpation in the lumbosacral region. Neurological examination revealed normal deep tendon reflexes in the left lower extremity. The veteran reported diminished sensation to pinprick over the lateral leg and foot on the left, but extensor hallucis longus strength was normal. The relevant impression was postural backache without signs of herniation and intervertebral disc. The examiner commented that he did not feel the veteran's back complaints were related to his right leg amputation. The veteran was seen in July 1989 at the Gainesville VAMC complaining of low back and left lower extremity pain. A neurosurgery consultation and an electromyogram (EMG) were recommended. He underwent an EMG on August 2, 1989, which revealed minimal L5 or S1 root damage on the left. This was noted to be consistent with "active though mild" S1 radiculopathy. X-rays taken in July 1989 reportedly showed degenerative joint disease in the lumbosacral spine. On August 21, 1989, the veteran was seen complaining that he had twisted his left knee two days previously. He and his wife submitted written statements in June 1990 describing this incident. He apparently lost his balance and fell as he tried to get up off the couch because his right leg prosthesis came loose and fell off. He stated that he injured both his low back and his left knee at that time. The veteran had a neurosurgery consultation in September 1989. The report from that consultation indicates he reported having a burning sensation in his left anterior thigh and left posterior calf, and a numbness in his left big toe. X-rays of the lumbosacral spine reportedly showed diffuse degenerative joint disease and minimal disc disease at L5-S1. The impression was myofascial pain syndrome. The veteran had more lumbar spine X-rays taken in February 1990. No fracture, dislocation or destructive bony lesions were seen. Vertebral bodies were normal in height and alignment, and intervertebral disc spaces were well-maintained. Sacroiliac joints were reportedly unremarkable. The conclusion was lumbosacral spine within normal limits. The veteran underwent another VA examination in March 1990. He reported a history of having injured his back in August 1989 when he stepped out of his right leg prosthesis. He complained of burning and pain in his lower lumbar area, with radiation down the left lower extremity to his toes. The relevant impression was lumbar degenerative disc disease with intermittent right lower extremity radiculopathy. The veteran complained of intermittent mid-back pain in November 1990. No relevant diagnosis was made. In May 1991, he was seen again and reported low back pain for two weeks with radiation into the left lower extremity. The impression was lumbosacral strain. In August 1991, the veteran complained of back pain since May 1991. He reported that he had recently lifted a box and had had increased pain since then. The pain reportedly radiated into his left leg, and his left great toe was numb. The impression was low back radicular pain consistent with L5 root and L4-5 disc. A magnetic resonance imaging (MRI) study was done in September 1991, and revealed a left central herniated nucleus pulposus present at L4-5, and an extruded fragment at L4-5. The impression was herniated nucleus pulposus of the L4-5 disc. The veteran underwent a VA neurosurgery consultation also in September 1991. He was noted to have a long history of intermittent low back pain and infrequent left leg pain. He also complained of left great toe numbness. The impression was left L4-5 herniated nucleus pulposus. In October 1991 he underwent a left L4-5 microdiscectomy at the Gainesville VAMC. During the procedure, a calcified herniated nucleus pulposus compression the left L5 nerve root was identified. Another letter from Louis Radnothy, D.O., dated in February 1992, was received at the RO in March 1992. Dr. Radnothy reviewed the veteran's medical history, and stated that in his opinion the veteran's low back pain was definitely related to his right leg amputation. Dr. Radnothy elaborated by stating that the amputation resulted in an unstable lumbosacral spine, which probably caused increased stress, which, in turn, caused the herniated disc at L4-5. According to 38 U.S.C.A. § 5107(b), when there is an approximate balance of the positive and negative evidence regarding the merits of a claim, the benefit of the doubt is to be given to the claimant. This is a codification of the long-standing policy of the VA set out at 38 C.F.R. § 3.102 (1994), which provides that when "a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant." The Court of Veterans Appeals discussed the history and meaning of these provisions in Gilbert v. Derwinski, 1 Vet.App. 49, 54-55 (1990), stating that "[w]hen all of the evidence is assembled, the Secretary, or his designee, is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied." Id. at 55. Jurisdiction in this determination is conferred on the Board at 38 U.S.C.A. § 7104(a) (West 1991) and 38 C.F.R. § 20.101 (1994). The Board finds that the evidence in this case regarding the origin of the veteran's low back pain is in equipoise. Although the file contains some medical opinions to the effect that the low back pain is not related to the veteran's right leg amputation, we find the statements of Dr. Radnothy, the veteran's physician of several years, also very persuasive. In addition, the veteran's August 1989 fall, resulting in an injury to his low back, was directly related to his amputation, as it occurred because his prosthesis came loose. The Board notes that the claims file is replete with notations indicating that the veteran has had persistent difficulties with his prostheses over the years, due to ill-fitting devices and the shortness of his stump. Service connection for a low back disorder, as proximately due to or the result of a service-connected right below-the-knee amputation, is granted, with application of the benefit of the doubt rule. ORDER Service connection for a low back disorder, as proximately due to or the result of a service-connected right below-the-knee amputation, is granted. NANCY I. PHILLIPS 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.