BVA9501256 DOCKET NO. 93-06 351 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a low back disability (other than the service connected residuals of a pilonidal cystectomy). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa Schlecht, Associate Counsel INTRODUCTION The appellant had active service from June 1943 to November 1945, from November 1951 to November 1954, and from October 1955 to May 1970. Service connection was granted for the residuals of a cystectomy at the base of the spine by rating decision of February 1946. By rating decision dated February 1980, service connection for a back injury was denied and service connection was granted for bilateral hearing loss. The appellant was provided notice of that decision granting service connection for the hearing loss in February 1980. That letter did not contain information concerning the claim for residuals of a back injury. A rating decision dated September 1981 denied service connection for a back condition. The appellant was so notified in October 1981, but he did not file a timely notice of disagreement as to this rating decision. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied the appellant's request to reopen a claim of entitlement to service connection for a low back disability. It appears that the appellant's representative, in a February 1993 statement, argues that service connection was originally granted for residuals of a back injury in a February 1946 rating decision, and therefore subsequent ratings which denied service connection for a back disability were clearly and unmistakably erroneous. However, the appellant, in his February 1946 application, claimed benefits only for "spinal cyst operation," not residuals of a back injury. The February 1946 rating decision granted service connection only for "cystectomy, base of spine," not for orthopedic or neurologic back disease or disability or for residuals of a back injury. The notice letter noted only that service connection had been granted for a "back condition." A claim clear and unmistakable error based on these facts has not been developed for appellate review. Such a claim is not inextricably intertwined with the issue before us. If the veteran or his representative desire to file such claim initial action should be addressed to the RO. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends in his notice of disagreement that he has low back pain and permanent back injury, and that this back disability is a result of a fall in service in 1944. He contends that there is a relationship between his current disability and lumbosacral strain/sprain diagnosed in the third period of service. He contends that he now suffers from post-traumatic degenerative changes of the lumbar spine as a result of that fall. 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. New and material evidence has been submitted to reopen the claim for service connection for a low back disability. However, 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 against allowance of the claim for service connection for a low back disability. FINDINGS OF FACT 1. All available evidence necessary for an equitable disposition of the issue on appeal has been obtained by the RO. 2. The rating decision of February 1980 denying entitlement to service connection for a back injury became final in the absence of a timely appeal. 3. Additional evidence received subsequent to that rating decision, when reviewed in the context of the evidence previously received, raises a reasonable possibility of changing the outcome of the case, since it tends to show that the appellant has a back disability related to service. 4. Service medical records continuing through May 1970, approximately 26 years following a fall which is claimed to have resulted in traumatic arthritis, contain no clinical evidence of arthritis or chronic complaints of back pain, back stiffness, or other signs or symptoms of arthritis, or other evidence of continuity of back symptoms following a 1944 injury to the appellant's back. 5. The earliest post-service medical records which show degenerative changes of the lumbar spine are not until October 1979, at a time too remote to be reasonably related to service. 6. Medical evidence does not establish a definite relationship between the appellant's current low back disability and an injury in service in 1944 or any other in-service event or occurrence. CONCLUSIONS OF LAW 1. New and material evidence has been submitted since the February 1980 rating decision, which denied the claim for service connection for a low back disability, and the claim is therefore reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156(a), 20.302 (1993). 2. A chronic low back disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant's claim of entitlement to service connection for a back injury meets the definition of a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a). The Board finds that all relevant records necessary to adjudicate the appellant's claim have been associated with the claims folder and that the duty to assist as mandated by 38 U.S.C.A. § 5107(a) has been met. In particular, the service medical records appear complete and there is no indication that any material post-service medical records or other records for the period proximate to service exist. If a notice of disagreement is not received within one year of the date of mailing of a notice of determination by a VA regional office, that determination becomes final. 38 U.S.C.A. § 7105. However, if new and material evidence is presented or secured, the claim will be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108. In order to determine whether the appellant has submitted new and material evidence to reopen the October 1979 rating decision, which became final when no timely notice of disagreement was submitted, the Board has reviewed the evidence of record at the time of that 1979 rating decision, as well as all evidence associated with the claims folder since that decision. Glynn v. Brown, 6 Vet.App. 523 (1994). The credibility of the evidence submitted since the prior denial is presumed for the purposes of determining whether a claim could be reopened. Justus v. Principi, 3 Vet.App. 510 (1992). The appellant contends that his current low back disability is a result of an injury he received during active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Arthritis is a chronic disease which may be presumed incurred in service if manifested to a degree of ten percent within one year of discharge. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309(1993). The evidence of record at the time of the 1980 denial of service connection for a back injury consisted of service medical records from the appellant's 1943 to 1945 service, service medical records from the appellant's 1951 to 1953 service, and service medical records from 1955 through May 1970. In addition, a VA examination conducted in October 1979 was of record. The service medical records show that in December 1944 the appellant was treated in sick bay for drainage from deep sinus in the skin over the sacrum. The appellant gave a history of having fallen and having struck his lower back eight months previously, developing a small sore spot at the base of the spine. No complaints of back pain, stiffness, or soreness, other than the complaints associated with the draining cyst, were noted. The service medical records show that the skin sinuses at the base of the appellant's spine continued to drain. In March 1945, approximately one year following the reported fall, radiologic examination of the sacrum and coccyx was negative except for findings of a spina bifida of the first sacral segment. Spina bifida is a congenital developmental anomaly characterized by defective closure of the bony encasement of the spinal cord. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1560 (27th ed. 1988); see Blanchard v. Derwinski, 3 Vet.App. 300, 301 (1992). Under 38 C.F.R. § 3.303(c), VA compensation benefits may not be granted for congenital or developmental defects. See O.G.C. Prec. Op. 82-90, 55 Fed. Reg. 45,711 (1990). Regardless, this radiologic finding appears erroneous, since spina bifida was not noted or confirmed on subsequent in-service or post-service radiologic examination, including the October 1979 VA examination. In March 1945 the appellant was hospitalized for operative exploration and drainage of the sinus tracts and removal of a cyst at the base of the spine. The records show that the procedure was done in April 1945 and that he remained under medical care through June 1945. A November 1945 physical examination at the expiration of enlistment for this first period of service noted the history of the cyst surgery, but examination of the spine was otherwise determined to be normal. As noted above, the veteran claimed, and was granted, service connection for the residuals of the cyst removal by rating action of February 1946. The notification letter noted that service connection was granted for a "back condition" but this clearly was the back condition that was claimed--the residuals of the cyst removal. In November 1953, the appellant was again hospitalized with a diagnosis of pilonidal cyst and draining pilonidal sinuses. At that time, the appellant gave a history of lifelong drainage and discomfort in the coccygeal region. No complaints of back pain, stiffness, or soreness other than the complaints associated with the pilonidal cyst were noted. Operative treatment of the pilonidal cyst and associated sinus tracts was performed on November 13, 1953, and the appellant was discharged from the hospital later that same month. Service medical examinations conducted in 1955, 1959, 1962, 1967, 1968, and 1969 disclose no findings of back disability or back abnormality, other than notations regarding the 1945 and 1953 treatment of pilonidal cyst, and the appellant did not report a history of back pain. Service medical records show that in July 1961, the appellant was seen one time for lumbosacral sprain with no reflex changes and no pain on straight leg raising. No complaints of chronic back pain, stiffness, or soreness were reported at that time. The service medical records include no further reference to back complaints until May 7, 1970, when appellant was seen one time for complaint of low back pain after working on his car. At that time, neurological studies were within normal limits. There was slight tenderness on palpation. The impression was of a lumbosacral spasm. X-rays were to be taken, and the veteran was to return in 1 week if not improved with the conservative treatment that was recommended. Service medical records reveal no further pertinent entries. At the time of an October 1979 VA physical examination, the veteran gave a history of falling in 1945, rupturing the tail bone, and requiring surgery in 1945 and 1953 or 1954. The examination conducted in October 1979 disclosed no pain on straight leg raising and no neurological signs or symptoms in the lower extremities. The appellant reported a history of the cyst removals in service and complained pain in his lower right side which he stated was of two years' duration. Radiologic examination showed degenerative disc disease at L4-5 and minor associated degenerative hypertrophic changes. The examiner determined that the appellant had degenerative joint disease, not connected to service. Evidence received since the 1980 rating decision denying service connection for a back injury has been reviewed to determine whether that evidence is new and material. Evidence is new when not merely cumulative of other evidence in the record, and is material when relevant to and probative of the issue in the case and when there is a reasonable possibility that the additional evidence, when viewed in the context of all evidence of record, old and new, would change the outcome. 38 C.F.R. § 3.156(a); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Since the 1980 rating decision, the appellant has submitted an outpatient treatment record showing that the appellant complained of back pain in 1981 and a prescription for Motrin was refilled. Duplicates of the service medical records of 1961 and 1970 noting examination for complaints of back pain were submitted, along with duplicates of other service medical records. A VA examination conducted in November 1992 included a physical evaluation. At that time, the appellant provided a history of discomfort on long periods of sitting following his pilonidal surgeries. This evidence is not new and material to the appellant's application to reopen a claim for service connection of a low back disability. Evidence added to the record since the last denial includes a statement from Jacky F. Dunn, D.O., following a visit by the veteran to Dr. Dunn's office in July 1991. Dr. Dunn noted that the veteran gave a history of 2 years of back pain. Dr. Dunn examined the veteran's records and noted a history of back surgery in 1945 and 1953 or 1954. Dr. Dunn also reviewed the October 1979 VA examination report. Dr. Dunn noted that: In view of [the veteran's] recurrent complaint of back pain and previous history of the original back injury having occured (sic) while in the military, he and I are requesting that the Veteran's Administration (sic) re-evaluate [the veteran] to dtermine (sic) the cause of his back pain and to determine if [the veteran] is entitled to veteran's benefits and disability. This statement does not provide an opinion that any current findings are related to service, it only requests that the claim be evaluated. As such, it does not provide a basis for altering the claim. The appellant also submitted a May 1992 opinion from Stephen A. Heim, M.D., stating that, based on the appellant's history of injury to the back in service, followed by surgery and continuing back pain, he thought the appellant had post-traumatic degenerative disease of his low lumbar spine. With the exception of the 1992 physician note from Dr. Heim, the evidence submitted since October 1979 regarding a low back disability is cumulative, duplicating evidence already of record, or immaterial. Because Dr. Heim's note provides a medical opinion purporting to relate the appellant's low back disease to injury in service, and the only history of injury was an in- service injury to the back in 1944, this evidence is arguably sufficient to reopen the appellant's claim for service connection of that condition. Colvin v. Derwinski, 1 Vet.App. 171 (1991). Although the RO did not reopen the appellant's claim and make a decision based on all the evidence of record at the time of the June 1992 decision which is before the Board, the appellant is not prejudiced by the Board's review of the claim on the merits. The appellant was provided notice of the need to present evidence and arguments on the merits to establish service connection, as well as applicable statutory provisions and regulations, and both the appellant and his representative have requested that the Board review the issue of service connection on the merits. 38 U.S.C.A. §§ 5107(a), 7105(d); 38 C.F.R. §§ 3.103, 20.101, 20.302. See Bernard v. Brown, 4 Vet.App. 384, 392-294 (1993); Schafrath v. Derwinski, 1 Vet.App. 589(1991). Having reopened the case, the Board must consider all the evidence of record, including both the new evidence and the old evidence. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). A grant of service connection requires a finding that there is a current disability which has a definite relationship with an injury or disease or some other manifestation of the disability during service. Cuevas v. Principi, 3 Vet.App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). When all the evidence is considered as a whole, however, Dr. Heim's treatment note is not of sufficient weight to establish a definite relationship between the appellant's current disability and the 1944 injury alleged as the cause of the current disability, nor is Dr. Heim's statement of sufficient weight to bring the evidence on that issue into equipoise. The weight of Dr. Heim's statement is diminished by several factors. Dr. Heim did not treat or examine the appellant until many years after service and more than 45 years after the fall which appellant alleges injured his lumbar spine. Dr. Heim's opinion was based on a history of symptoms and complaints as related by the veteran rather than on first-hand knowledge of those symptoms, since he was seeing the appellant on a referral basis and had not previously treated the appellant. The record does not show that all records of prior treatment were before Dr. Heim at the time he entered his opinion. In assessing the weight of Dr. Heim's opinion, the Board evaluates not only the time which elapsed between the injury and the physician's evaluation and opinion regarding that injury, but also the clarity with which the veteran reported the clinical history and the consistency between the clinical history related by the veteran and the clinical history related in other documents. Dr. Heim's statement reflects only that he was aware that the appellant had "back injuries, including two surgeries." Dr. Heim's treatment note does not reflect that the appellant's particular surgeries were for a pilonidal cyst. A pilonidal cyst is by definition a dermoid (affecting the outermost, non-vascular layer of the skin) cyst containing hairs which occur in the sacrococcygeal region of the skin. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 422, 421, 566 (27th ed. 1988). See also Penorio v. Derwinski, 2 Vet.App. 625, 627 (1992). Thus, Dr. Heim has provided an opinion about the current results of a past injury reported by history, where the history on which the opinion is based did not provide a specific description of the symptoms, sequelae, or surgical procedures following the injury. Although Dr. Heim states that he reviewed the appellant's "past back injuries, including two surgeries, and his history of back pain," Dr. Heim's note does not reference any fact obtained from such a review. Because Dr. Heim's note does not specify that the appellant's "back" surgeries were in fact not related to the bones, nerves, or muscles of the spine, but were for a pilonidal cyst, it appears that the factual premises on which Dr. Heim's conclusion that the appellant suffers from traumatic degenerative disease were inaccurate. A medical opinion which is based on an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993). Further, Dr. Heim's description of the appellant's back pain as "off and on" since the 1944 injury is inconsistent with the clinical evidence, which includes no reports or complaints of in- service or post-service chronic back pain before 1979, at which time the appellant reported to the VA examiner that the back pain was of two years' duration. Dr. Heim's statement that the appellant's back pain began in 1945 is also inconsistent with the clinical evidence from the two occasions, once in 1961 and once in 1970, when the appellant sought treatment for back pain. Although lumbosacral sprain was diagnosed in service in 1961, this appears to have been acute and transitory, since no further treatment was sought and there were no abnormal or pathologic back findings. The 1961 and 1970 treatment records include no complaints of chronic back pain, stiffness, soreness such as the appellant complains of with his current disability, but rather provide evidence of acute and transitory back pain which required no follow-up treatment. The weight of Dr. Heim's opinion is further diminished because he did not explain how injury manifested by a draining pilonidal cyst could be related to degenerative disc disease of the lumbar spine many years later, nor did he explain how he reached the conclusion that current degenerative changes in the lumbar spine are a result of trauma sustained in 1944 in-service injury rather than a result of the normal aging process. In contrast to Dr. Heim's opinion, radiologic findings in October 1979 showed degenerative disk disease at L4-5 and "minor associated hypertrophic changes at superior lumbar levels and in the sacroiliac joints." Degenerative disk disease is, of course, different than degenerative joint disease (osteoarthritis). See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1197, 485 (27th ed. 1988); Bierman v. Brown, 6 Vet.App. 125, 126 (1994). Compare 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010 with Diagnostic Code 5293. After reviewing the radiologic findings and the appellant's history of injury and pilonidal cyst surgeries, the examiner in 1979 concluded that the appellant had degenerative joint disease not connected to service. Significantly, he did not diagnose the degenerative joint disease as traumatic in origin, even though the appellant had given a history of trauma. In this case, more than 30 years elapsed between the appellant's alleged back injury (1944) and the first radiologic evidence of degenerative disease of the lumbar spine (1979). See also Cross v. Derwinski, 2 Vet.App. 150 (1992) (upholding Board determination that minimal degenerative changes 40 years after service were not related to trauma). An x-ray taken in 1945, approximately one year following the injury, was negative for acquired back pathology, and there were no recorded complaints of any chronic lumbar disability prior to service discharge in 1970, 26 years following the injury. It would not be reasonable to conclude, on the basis of Dr. Heim's unexplained opinion, that degenerative disease of the lumbar spine found so long after a fall in service is related to that event. In the context of all the evidence, Dr. Heim's opinion has little weight. See, e.g., Sklar v. Brown, 5 Vet.App. 140, 146 (1993); Black v. Brown, 5 Vet.App. 177, 180 (1993). Thus, the Board concludes that the evidence does not establish a definite relationship between the appellant's injury in service and his current back disability, nor does the evidence establish that the appellant has arthritis that was manifested to a ten-percent degree within one after service discharge, nor is the evidence favoring entitlement to service connection sufficient to place the issue in equipoise. Therefore, the provisions of 38 U.S.C.A. § 5107 regarding reasonable doubt are not applicable in this case. ORDER Entitlement to service connection for a back disorder is denied. MICHAEL D. LYON 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.