BVA9504722 DOCKET NO. 92-08 413 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES Entitlement to service connection for lumbosacral disc disorders with left leg atrophy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Associate Counsel INTRODUCTION The appellant served on active duty from September 1978 to November 1987. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal of a February 1991 rating determination by the Department of Veterans Affairs (hereinafter VA) Regional Office (hereinafter RO) located in San Diego, California. The notice of disagreement was received in April 1991. The statement of the case was furnished in July 1991. The substantive appeal was received in October 1991. The Board remanded the case in December 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he sought care for low back and left leg problems beginning in 1981 in service. He asserts that he was given exercises and was told by military physicians that he did not have a problem. His representative requests consideration of O'Hare v. Derwinski, 1 Vet.App. 365 (1991). 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 supports entitlement to service connection for disc disorders involving the lumbosacral spine with left leg atrophy. FINDINGS OF FACT The evidence establishes the presence of disc disorders involving the lumbosacral spine with left leg atrophy during service. CONCLUSIONS OF LAW Entitlement to service connection for disc disorders involving the lumbosacral spine with left leg atrophy is warranted. 38 U.S.C.A. §§ 1131, 5107(b) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's original claims file has apparently been destroyed or lost, and his current claims file has been rebuilt. The rebuilt file contains the separation examination and some dental records. Due to the unavailability of the veteran's original claims file and the rebuilt file may not contain all of the evidence which was in the original file, the Board gives the veteran the benefit of the doubt and finds that he has presented evidence of "well-grounded" claims within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the claims are plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board also notes that the VA has a duty to assist the veteran in development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993); see also Murphy v. Derwinski, 1 Vet.App. 78, 82 (1990). However this duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991), confirmed on reconsideration at 1 Vet.App. 406 (1991). Pursuant to Board remand in December 1992, the RO requested that the veteran furnish the approximate dates, places and the units he was assigned to when he sought treatment for his back pain in service. The RO mailed the request to the veteran's former address. As a result there was no response. Due to the grant of the total benefits sought regarding these issues, the Board finds that he will not be prejudiced within the meaning of Bernard v. Brown, 4 Vet.App. 384 (1993) by his inability to provide this information. Service connection may be granted when the veteran has a disability as the result of a disease or injury incurred or aggravated by peacetime service that is not the result of the veteran's own willful misconduct. 38 U.S.C.A. § 1131 (West 1991). The veteran contends that he sought care for low back and leg problems beginning in 1981 in service. He asserts that he was given exercises and was told by military physicians that he did not have a problem. The record which has been carefully reviewed by the Board includes extensive medical records of the veteran documenting treatment received by him from shortly after separation from service to the present, and will be briefly summarized. Most of the veteran's service medical records have been lost or destroyed. The veteran's medical examination pursuant to separation from service, dated in November 1987, is of record and is negative for any complaints, findings or treatment for any low back or leg disability. Private medical records from Pomerado Hospital dated in August 1988 are of record. Although the veteran was hospitalized for an unrelated illness, an examination noted post-traumatic atrophy of the left posterior calf muscles. The veteran's private physician, Mark S. Stern, M.D., in a letter dated in September 1991, stated that the veteran was under his care from December 1989. The physician arrived at a diagnosis of lumbar disc herniation which was confirmed by a January 1990 magnetic resonance imaging test. A VA orthopedic compensation examination was performed in January 1993. The range of motion of the lumbar spine was 100 degrees forward flexion, 40 degrees extension, 40 degrees lateral bending bilaterally, and 50 degrees rotation bilaterally. His left ankle and knee reflexes were diminished. The straight leg raising test was normal bilaterally. There was some question as to whether sensation over parts of his leg was normal, absent or diminished. An x-ray evaluation revealed mild degenerative disc disease at L5-S1. A diagnosis of back pain with nerve root irritation was given. A VA neurological compensation examination was performed in November 1993. The veteran related a history of knee pain and left calf atrophy starting in 1981 due to practicing karate and low back pain started shortly thereafter. Examination revealed marked atrophy of the left calf and slight weaknesses in the left hamstring muscle and foot dorsiflexors. The range of motion of the low back was normal. The left ankle reflex was normal. A diagnosis of left S1 radiculopathy was given. The examiner also stated that this was the cause of the veteran's left leg atrophy. The only differential diagnosis of this disability could be a posture or tibial neuropathy. Lay witness statements were submitted by [redacted], a fellow serviceman, and the veteran's divorced spouse. Mr. [redacted] stated that he has known the veteran since 1983 and recalls that the veteran has complained of leg pain since then. The veteran's divorced spouse stated that the veteran's left calf became noticeably smaller in service and that he sought medical attention to alleviate this problem. The Board notes that these statements constitute competent lay evidence as the lay witnesses are testifying to symptomatology that they witnessed. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The veteran also submitted photographs allegedly taken in 1981, 1984 and 1992. The veteran contends that these photographs demonstrate that his left leg has been atrophied since 1981. However, the Board notes that in the photograph alleged to have been taken in 1981, the right leg is obscured, so a comparison for any difference in size cannot be made. In the photograph alleged to have been taken in 1984, both legs are totally covered by stockings and are at different angles, so, again, a comparison for any difference in size cannot be made. The Board does note that the photograph alleged to have been taken in March 1992 clearly shows that the veteran's left calf is smaller than his right calf. Although these photographs do not constitute competent medical evidence that any left leg atrophy was present in service, as this question can only be resolved by a person competent to make medical judgments, Espiritu v. Derwinski, 2 Vet.App. 492 (1992), there is competent medical evidence of record that the veteran's left calf has atrophied and that this is due to a disc disorder. Due to the absence of most of the veteran's service medical records, and in light of the heightened obligation imposed by O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991), the Board has carefully reviewed the evidentiary record in an attempt to corroborate the veteran's assertions that he has continued to experience the residuals of lumbosacral disc disorders with left leg atrophy since service. The Board finds that the record contains such pertinent evidence. Particularly, the Board has considered the statements of the veteran and the lay witnesses regarding service connection for lumbosacral disc disorders with left leg atrophy, and finds these assertions persuasive and credible to support the proposition that the veteran's left leg was atrophied in service. In addition, the hospital statement, made just 9 months after separation from service, that the veteran presented with left leg atrophy, also supports these assertions. Finally, competent medical evidence, consisting of the opinion of the VA neurologist, demonstrates that the veteran's left leg atrophy was caused by a disc disorder of the lumbosacral spine. It has been shown by a preponderance of the evidence that left leg atrophy was present inservice and that this atrophy was caused by the veteran's lumbosacral disc disorder and therefore, service connection is warranted. ORDER Entitlement to service connection for lumbosacral disc disorders with left leg atrophy is granted, subject to the law and regulations governing the award of monetary benefits. EUGENE A. O'NEILL 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. (CONTINUED ON NEXT PAGE) 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.