BVA9507563 DOCKET NO. 93-09 193 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE 1. Entitlement to service connection for cervical spondylosis with radiculopathy. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disorder. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for residuals of a hemorrhoidectomy. REPRESENTATION Appellant represented by: Richard K. Betterton, Attorney WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from September 1969 until June 1977. By letter in June 1989, the veteran was notified of a rating determination one month earlier denying service connection for hemorrhoids and a lumbar back strain. VA Form 21-4138, Statement in Support of Claim, was received on August 6, 1990, in which the veteran reported that the VA had not informed him of a denial of his claim for service connection for hemorrhoids and a back condition and that he had only been informed by his service representative of the denial at the time of the execution of VA Form 21-4138, on July 7, 1990. It was requested that that form be accepted as the notice of disagreement (NOD) to the May 1989 rating determination. By letter of August 29, 1990, he was informed that the prior denial was final since he had not submitted a timely notice of disagreement (within one year of the June 20, 1989, notification as required by 38 C.F.R. § 20.302(a) (1994). This matter comes before the Board of Veterans' Appeals (the Board) from November 1990 and June 1991 rating determinations of the Des Moines, Iowa, Regional Office (RO) of the Department of Veterans Affairs (VA). For reasons which will be explained, the issues of whether new and material evidence has been submitted to reopen claims for service connection for a low back disorder and residuals of a hemorrhoidectomy are remanded to the RO for further development. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran sustained an injury of the cervical spine when he was thrown from a vehicle in December 1970 while in combat in Vietnam. It is asserted that he reinjured his cervical spine while stationed in Hawaii in 1974 for which he received extensive treatment. It is maintained that the symptoms of cervical spine pathology, including pain and discomfort in the cervical spine and in the right arm, prior to his cervical spine surgery in 1990 were a continuation of symptoms since the inservice injuries, although at times the symptoms may have temporarily been in remission. 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 preponderance of the evidence is in favor of the claim for service connection for cervical spondylosis with radiculopathy. FINDINGS OF FACT 1. The veteran had active service from September 1969 to June 1977. 2. The veteran sustained an injury of the cervical spine during service and X-rays of the cervical spine disclosed angulation at the intervertebral disc space between the 4th and 5th cervical (C4 and 5) vertebrae, possibly from disc space narrowing on the right side at that site, and slight degenerative changes with anterior lipping of C5. 3. Cervical spondylosis (osteoarthritis) with disc disease first manifested during active service. CONCLUSION OF LAW Cervical spondylosis with radiculopathy was incurred during active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is plausible and thus, "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991) which mandates a duty to assist the veteran in the development of all evidence pertinent to his claim. For reasons which will become self-evident, it is the determination of the Board that with respect to his claim for service connection for cervical spondylosis with radiculopathy, the evidentiary record is sufficient in scope and in depth for a fair, impartial, and fully informed appellate decision. Service connection is to be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. This requires a finding that there is current disability which has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992) and Cuevas v. Principi, 3 Vet.App. 542, 548 (1992). However, it need not be shown that the disability was present or diagnosed during service, but only that there is a nexus between the current condition and military service, even if first diagnosed after service, on the basis of all the evidence, including pertinent service medical records. This can be shown by establishing that the disability resulted from personal injury or disease suffered during service. 38 C.F.R. § 3.303(d); Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992). 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. When the fact of chronicity is not adequately established, then a showing of continuity after service is required. 38 C.F.R. § 3.303(b). However, only continuity of symptomatology, and not treatment, is required. Wilson v. Derwinski, 2 Vet.App. 16, 19 (1991). Further, it is not required that the diagnoses during and after service use exactly the same terminology. Heuer v. Brown, No. 93-992, slip op. at 12 (U.S. Vet. App. Feb. 7, 1995). "Rather, the regulation requires continuity of symptomatology in order to provide a linkage between the inservice and post service diagnosis." Jones v. Derwinski, 1 Vet.App. 210, 216 (1991). Where, as here, the veteran had ninety (90) days or more of war or peacetime service after December 31, 1946, and arthritis manifests to a compensable degree within a year after service, it is rebuttably presumed to be of service origin, absent affirmative evidence to the contrary, even if there is no evidence thereof during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). It is contended, and the veteran has testified (pages 2 through 4 of the hearing transcript), that he was injured in Vietnam when he was thrown from a jeep while outside his base perimeter. There are no service clinical records of such an injury. With respect to the provisions pertaining to combat veterans, read together, 38 U.S.C.A. §§ 1153, 1154 (West 1991) and 38 C.F.R. §§ 3.304(d), (e) and 3.306(b)(2) (1994) establish that even if there is no official service record, as in this case, satisfactory lay or other evidence of symptomatic manifestations, whether temporary or otherwise, consistent with combat with the enemy, create a rebuttable presumption of service incurrence and once this showing is made, the Government has the burden to rebut by clear and convincing proof that, as pertinent in this case, there has been no incurrence of a disability. Godwin v. Derwinski, 1 Vet.App. 419, 424 (1991); Horvath v. Derwinski, 2 Vet.App. 240 (1992); and Jensen v. Brown, 19 F.3rd 1413 (Fed. Cir. 1994). However, in this case, even the veteran's testimony reflects that he was not actually engaged in combat with the enemy at the time that the injury was incurred and that he had not felt that he was seriously hurt (page 4 of the transcript). In any event, the Board need not make any dispositive determination with respect to the foregoing provisions for reasons explained below. The veteran has also testified that he injured (or reinjured) his neck while stationed in Hawaii by lifting a heavy load off of a truck in 1974. Service medical records reflect that he was seen for pain in the back of his neck because of such an injury in November 1974 for which he was given traction. An X-ray of the cervical spine disclosed angulation at C4-5 of undetermined etiology, and on lateral view, there were slight degenerative changes of C5 with anterior lipping. It was noted that the angulation could be on the basis of disc space narrowing on the right side at C4-5. A clinical notation of November 18, 1974, noted that the X-ray had disclosed degenerative arthritis at C4-5. In December 1974, the veteran wore a soft cervical collar and in that same month, it was noted that he had paresthesia of the left posterior neck and left shoulder and arm pain and numbness, although electrodiagnostic tests in January 1975 were normal. Another clinical notation on January 23, 1975, indicated that the X-rays had disclosed minimal cervical spondylosis. Spondylosis is a general term for degenerative changes due to osteoarthritis. Dorland's Illustrated Medical Dictionary, 1567 (27th ed. 1988). Cervical spondylosis is degenerative joint disease affecting the cervical vertebrae, intervertebral discs, and surrounding ligaments and connective tissue, sometimes with pain or paresthesia radiating down the arm as a result of pressure on the nerve roots. Dorland's at 1567. He continued to be seen in January and March 1975 and was also seen in June 1976 for what was described as a history of chronic neck pain. The report of the examination for service discharge is not on file and there is no clinical evidence on file in the immediate post service years reflecting complaints or treatment for disability of the cervical spine. However, as indicated, continuity of the symptomatology is required only if a chronic disease is not shown during service. In this case, VA X-rays of August 1990 disclosed joint space narrowing from C2 thru C7, except at C4-5, and spurring, as well as compromise of the intervertebral foramina from C4 through C6. The findings were consistent with mild spondylosis, particularly at C4-5 (as during service) and C5-6. Because of cervical radiculopathy with degenerative joint disease of the cervical spine, the veteran underwent a single level anterior cervical fusion during VA hospitalization in November 1990, as well as what Dr. Mouw reported in August 1992 was a diskectomy at C6-7. Given the evidence of arthritis and intervertebral disc space narrowing by radiological studies during service, it is the determination of the Board that service connection is warranted for cervical spondylosis with radiculopathy, to include the residuals of the veteran's cervical spine surgery in November 1990. In reaching this determination, the Board has considered the doctrine of evaluating whether a fair preponderance of the evidence is against or is in favor of the claim or is in equipoise. In this case, it is the determination of the Board that a fair preponderance of the evidence is in favor of the claim within the meaning of 38 U.S.C.A. § 5107(b) (1991). Accordingly, service connection for cervical spondylosis with radiculopathy is warranted. ORDER Service connection for cervical spondylosis with radiculopathy is granted. REMAND The examination for service entrance did not disclose the presence of hemorrhoids, giving rise to the presumption of soundness at service entrance. However, a history of his having had hemorrhoids was noted in an adjunct medical history questionnaire, and the service medical records as a whole otherwise reflect a long history antedating hemorrhoids to prior to service. Indeed, in his May 1992 NOD, he reported that although his hemorrhoids had been only a minor problem at service induction, they had been aggravated by his duties as a tank crew member, eventually requiring an inservice hemorrhoidectomy. As a matter of law, the presumption of soundness is rebutted by clear and unmistakable evidence consisting of the veteran's own admissions during clinical evaluations of a preservice history of disability. Doran v. Brown, 6 Vet.App. 283, 286 (1994). It is not clear if the veteran had preservice treatment for hemorrhoids, but this matter should be clarified and, if he did, those records should be obtained. Similarly, it does not appear that he had any post service treatment for his hemorrhoids. In a January 1991 statement, he requested a noncompensable evaluation for his hemorrhoids, he did not testify at the November 1992 hearing of post service treatment for hemorrhoids, and he has not submitted post service clinical records of treatment for hemorrhoidal pathology which would serve to constitute new and material evidence to reopen the claim since the prior denial in May 1989 which was not timely appealed. On the other hand, in his October 1990 application to reopen the claim for service connection for hemorrhoids, he requested an additional search for service medical records pertaining to that disability. In this regard, other than the notation in an adjunct medical history questionnaire at service entrance of a history of hemorrhoids, the service medical records are negative for hemorrhoidal pathology until September 1975. In November 1976, he had internal and external hemorrhoids and surgery was recommended in light of there having been little success with conservative treatment. He was taking suppositories, sitz baths, and stool softeners. He was given physical profiles prior to and after hospitalization from February 22 to 26, 1977, when he had a hemorrhoidectomy for internal hemorrhoids. However, the discharge summary of that hospitalization and the actual operative report are not on file. These records may be relevant to the issue of whether preexisting hemorrhoidal pathology increased in severity during service and, therefore, an additional search should be made for those records. With respect to the application to reopen the claim for service connection for a lumbar disorder, the evidence on file at the time of the May 1989 denial included history which was consistent with his recent testimony of an injury during service in Vietnam in 1970 and a subsequent injury during service in 1974. Service medical records reflect treatment for complaints of back pain which was attributed to viral syndrome. The evidence previously on file also reflects that a clinical record of June 20, 1978, discloses that he was seen concerning his work and on several occasions in June and July 1978 he was seen for complaints of back pain. In a 1983 VA Agent Orange evaluation it was noted that after the 1978 injury while employed in the Foundry at the John Deere Company, he was off work for one month. An X-ray on the February 1989 VA examination disclosed disruption of the upper cortical margin, anteriorly, of the fourth lumbar (L4) vertebral body consistent with a recent fracture. The assessment was a past history resembling a possible herniated disc, but was now asymptomatic. The new evidence received since the May 1989 denial includes private clinical records of 1978 from Dr. John Flage. A June 1978 notation indicates that the veteran had a reported six-year history of back problems with physical therapy three years ago in Hawaii (which would antedate a back problem to military service), but also indicates that he had pulled his back at work four weeks ago (at the John Deere Company). However, an X-ray of the lumbosacral spine in June 1978 was negative. In Dr. Crouse's September 1988 statement it was noted that in 1988, after bending over, he had experienced back pain which radiated down the right lower extremity. The veteran was a power plant operator (indicated on the February 1989 VA examination to be the M.H.I. at Independence, Iowa), and was seen for numbness of the right lower extremity which had started three weeks ago. X-rays disclosed hypertrophic changes of the anterosuperior border of L4. Overall, the old and new evidence indicates that the veteran had at least one injury, and perhaps two, to his low back during military service. Contrary to the contentions now asserted on appeal in VA Form 1-9, the old and new evidence also indicates that the veteran sustained injuries of the low back in 1978 and 1988 and that it was after the 1988 injury that X-rays suggested a fracture of L4. The evidence is not clear as to the severity of the veteran's post service low back injuries and whether they occurred in his employment or whether he filed workmen's compensation claims therefor. However, if so, all such evidence pertaining to the claims, including his statements, as well as clinical records, are pertinent and relevant to the application to reopen the claim for service connection for a low back disorder. Accordingly, the RO should attempt to determine whether the veteran filed workmen's compensation claims for post service injuries, and if so, obtain all records relevant thereto. In view of the foregoing, the case is REMANDED for the following actions: 1. The RO should contact the veteran and inform him that a November 1990 attempt to obtain clinical records of Dr. Donald Bolin and an April 1991 attempt by a VA veterans' service officer to obtain records of the Orthopaedic Specialists were negative because no response was received. Thus, if the veteran wishes to obtain additional clinical records or statements from those treating sources, he should be requested to make all necessary efforts or attempts on his own in light of the fact that VA attempts have been unsuccessful. 2. The RO should take the appropriate steps to contact the appropriate service department and obtain any and all records relevant and pertinent to the veteran's February 1977 hospitalization and surgery for hemorrhoids, as well as to obtain the report of the examination for service discharge. 3. The RO should contact the veteran and inquire as to whether the veteran filed claims for workmen's compensation benefits pertaining to possible on-the-job back injuries in 1978 while employed at the John Deere Company, and 1988 while employed at the M.H.I. (apparently a power plant) in Independence, Iowa. If he filed such claim(s), he should be requested to execute and return the necessary authorization forms for obtaining all records relevant to those claims, including records within the possession of the appropriate State Workmen's Compensation Bureau, or similar organization. If obtained, those records should be associated with the claims folder. 4. Since a determination of aggravation is made on the basis of all evidence of record, the veteran should be afforded a comprehensive VA proctology examination to determine the extent and severity of his residuals of a hemorrhoidectomy performed in February 1977 during service. All of his subjective complaints and all objective findings should be legibly recorded. All indicated tests and studies should be conducted, if necessary. The claims folder must be made available for review prior to the examination in order to facilitate study of the case. 5. The veteran should be afforded comprehensive VA orthopedic and neurology examinations to determine the causative factors or etiology of his current low back disability. Opinions or diagnoses should be requested as to whether any current orthopedic or neurological disability stemming from low back pathology is related to any injury or injuries of the veteran's low back during military service, as opposed to post service injuries. The veteran's subjective complaints and all objective findings should be legibly recorded. Detailed reasons and bases for all the diagnoses and opinions reached should be recorded. All indicated tests and studies should be conducted, if necessary. The claims folder must be made available for review prior to the examinations in order to facilitate study of the case. 6. Thereafter, the RO should readjudicate the issue of whether new and material evidence has been submitted to reopen the claim for service connection for residuals of a hemorrhoidectomy. Similarly, with respect to the claim for disability of the low back, in light of the prior denial of service connection therefor, the RO should readjudicate this issue, but not initially on a de novo basis; rather, the RO should first adjudicate whether new and material evidence has been submitted to reopen that claim. If new and material evidence has been submitted to reopen either of the claims, either or both such claims, as appropriate, should then be adjudicated de novo, in accordance with governing law and regulations. If either claim remains denied, the RO should issue a supplemental statement of the case, and the veteran and his representative should be given the appropriate period of time within which to respond thereto, at their option. Then, if otherwise in order, the case should be returned to the Board for further appellate consideration after compliance with all applicable appellate procedures. HOLLY E. MOEHLMANN 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand 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) (1993).