BVA9506006 DOCKET NO. 92-11 304 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Service connection for a back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Julia M. Kurtz, Associate Counsel INTRODUCTION The veteran served on active duty from May 1950 to October 1953. He was a prisoner of war of the Korean and Chinese governments from November 1950 to August 1953. This appeal arises from an August 1990 rating decision of the Pittsburgh, Pennsylvania, Regional Office (RO). The veteran testified before a hearing officer at the RO in February 1991. This appeal was previously before the Board in May 1993 and April 1994 when it was remanded for further development. This appeal originally included the issue of entitlement to an increased evaluation for the veteran's psychiatric disorder, now characterized as post-traumatic stress disorder. However, the RO granted a 100 percent evaluation for post-traumatic stress disorder in August 1994 which is considered a full grant of benefits on appeal. In September 1994, the RO denied entitlement to service connection for beriberi heart disease. The Board construes the accredited representative's statements regarding the denial in the January 1995 informal hearing presentation as a notice of disagreement to the denial. This issue is referred to the RO for appropriate development. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to service connection for a back disorder, to include post-traumatic osteoarthritis. He notes that he was a prisoner of war for over 33 months, and during that time, received many beatings on his back and shoulder and was forced to do extremely hard labor which hurt his back. 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(s). 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 the veteran's claim for entitlement to service connection for a back disorder, to include post-traumatic osteoarthritis of the back. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Scoliosis of the spine described as congenital was not shown in service, and was noted on examination in May 1954. 3. A back disorder, other than scoliosis, was not shown in service or for many years thereafter. 4. Post-traumatic osteoarthritis of the back has not been shown by the evidence of record. CONCLUSION OF LAW A back disorder was not incurred or aggravated by service, nor can post-traumatic osteoarthritis be presumed to have been so incurred. 38 U.S.C.A. §§ 1101. 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (VA) has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. Our review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed to the extent possible. The Board notes that the RO requested the veteran provide names and addresses of providers who have treated him for his back disorder; however, the veteran declined to provide such information. Moreover, the veteran refused to report for a prisoner of war examination. Accordingly, the Board will review the veteran's claim based upon the available evidence of record. The service medical records, including a prisoner of war examination report dated in September 1953, reveal no complaints or findings of a back disorder. At a VA examination in April 1954, the veteran complained of back pain and that he had been beaten across the shoulders and entire back by the rifle butt of his guard while a prisoner of war for 33 months. Physical examination revealed congenital scoliosis with curvature to the back. There was no interference with flexion or muscle spasms. X-ray examination of the spine was normal. The diagnosis was congenital scoliosis of the spine. Medical records from Samuel Sherman, M.D., dating from August 1980 to September 1988 were received in June 1990. A hospitalization record dated in October 1980 noted the veteran was hospitalized for chronic slipped facet syndrome, left, L5-S1. A computerized tomography scan of the lumbosacral spine dated in September 1985 was interpreted as showing degenerative disc disease at L5-S1. An August 1988 examination report of the lumbosacral spine indicated moderate degenerative spondylosis of the spine and degenerative changes of the discs. A letter from Dr. Sherman to Fred S. James Organization, dated in September 1988, described an examination of the veteran earlier that month. The veteran gave a history of being injured at work in 1979 when he fell of a truck and landed on his back. He stated that he also fell off a sweeper in 1960, injuring his back, and was off work for a few months. As a result, he underwent back surgery. He has been in receipt of Workmen's Compensation Benefits since 1980 or 1981. Physical examination revealed a scar in the L5 area. The veteran had trunk flexion of 45 degrees. Lateral motions were within normal limits and there was no backward bending. There was tenderness over the L4-5 area and upper sacral region. The examiner indicated that a current x-ray study dated in August 1988 showed considerable narrowing of the lumbosacral segment. The diagnoses included surgical scarring of the low back, probable laminectomy and degenerative arthritic changes, lumbosacral segment. VA outpatient treatment notes dating from May 1990 to July 1993 note the veteran was status post lumbar diskectomy in 1980. An RMS consultation was conducted for evaluation of multiple joint and bone pain. Examination revealed mild tenderness in the lumbar paraspinal region. The examiner indicated the veteran appeared to have possible multiple joint arthritis and had a history of status post low back surgery. The veteran testified before a hearing officer at the RO in February 1991. He testified that: he had no problems with his back prior to service, had been beaten on his back with a rifle while a prisoner of war, had back problems ever since, was full of arthritis since 1948, and that his only evidence is the beatings he underwent while a prisoner of war. A VA psychiatric report dated in March 1991 notes the veteran's past medical history includes arthritis and a history of lumbar laminectomy. At a VA psychiatric examination in July 1993, it was noted the veteran had a history of chronic back pain. At a May 1994 psychiatric examination, the veteran gave a history of osteoarthritis. Pertinent VA law and regulations provides that entitlement to service connection may be allowed for a disability which is incurred in or aggravated by the veteran's period of active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994). Moreover, in the case of arthritis, service connection may be granted if such disease is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Furthermore, as the veteran was a prisoner of war for more than thirty days, service connection may be granted for post-traumatic osteoarthritis, if such disease is manifested to a compensable degree at any time following service discharge, not withstanding that there is no record of such disease during the period of service. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). Congenital or developmental defects are not diseases or injuries for compensation purposes. 38 C.F.R. § 3.303(c) (1994). Subsequent to service, in April 1954, following complaints of back pain, the veteran was diagnosed with scoliosis of the spine, which is a congenital or developmental defect. As pointed out earlier, a congenital or developmental defect is that which an individual is born with; it is not a disease or injury for compensation purposes. Regarding a back disorder other than scoliosis, it is clear that a back disorder, to include arthritis, was not shown in service or within one year following service separation. Although the veteran testified that he has had arthritis since 1948, such date would precede entrance into service, and in any event, a diagnosis of arthritis is not supported by the medical evidence of record prior to the 1980's. Degenerative disc disease and degenerative arthritic changes of the lumbosacral segment were also not noted until the 1980's. Therefore, service connection for a back disorder, to include arthritis, on a direct or presumptive basis, is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). However, as noted above, as the veteran is a former prisoner of war, if post-traumatic osteoarthritis is documented at a compensable level at anytime subsequent to service discharge, service connection for that disorder will be granted. 38 U.S.C.A. § 1112 (West 1991); 38 C.F.R. § 3.309(c) (1993). Degenerative changes have been shown by the clinical evidence. Osteoarthritis is also noted in the veteran's medical records. However, osteoarthritis is noted by history only, not clinical evidence or examination, and does not note where it is located in the body. Moreover, it is not demonstrated that any osteoarthritis or degenerative changes are post-traumatic in nature. Although the veteran complained of beatings while a prisoner of war, there is no showing that his current degenerative changes, including a diagnosis of osteoarthritis, is in any way related to the beatings. The veteran also sustained documented injuries to the back in 1979 and 1988. Most importantly, however, post-traumatic osteoarthritis of the spine has not been shown by the evidence of record, and therefore, service connection is not warranted. 38 U.S.C.A. § 1112 (West 1991); 38 C.F.R. § 3.309(c) (1994). It is the defined and consistently applied policy of the VA to administer the law under a broad interpretation; consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a benefit of the doubt arises regarding service origin, such doubt will be resolved in favor of the veteran. In the instant case, the medical evidence is not in equipoise with regard to the claim in that the veteran does not experience post-traumatic osteoarthritis of the back or any other back disorder of service origin. As a substantial doubt has not been presented in this case, the benefit of the doubt doctrine is not for application. ORDER Service connection for a back disorder, to include post-traumatic osteoarthritis is denied. E. W. SEERY 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.