BVA9503798 DOCKET NO. 92-19 722 ) DATE ) RECONSIDERATION ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES Entitlement to service connection for a cardiovascular disability, peptic ulcer disease and a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran had active service from May 1947 to June 1948 and almost continuous active service from April 1949 to January 1972. The Board of Veterans' Appeals (Board) entered a decision in this case on November 1, 1993, denying entitlement to service connection for a cardiovascular disability, peptic ulcer disease and a back disability. Subsequently, a motion for reconsideration of that decision was filed with the Board. Reconsideration of the decision has been ordered by authority granted to the Chairman of the Board in 38 U.S.C.A. § 7103 (West 1991) and the case is now before an expanded Reconsideration Section of the Board. This decision by the Reconsideration Section replaces the decision of November 1, 1993 to the extent that it grants service connection for spondylolisthesis and, when completed, will fully replace the November 1993 decision. The record reflects that in an October 1975 rating action, service connection was denied for conditions including a back disability. However, the structure and language of the October 1975 notice of the decision are such that they could be construed as indicating that service connection had been granted for the back condition but the condition had been found noncompensable in degree. Accordingly, that action is not considered final and the veteran's claim for service connection for a back disability will be considered on a de novo basis. For reasons which will be set forth below, appellate consideration of the issues of entitlement to service connection for a back disability apart from spondylolisthesis of L5-S1, a cardiovascular disability and peptic ulcer disease is being deferred pending further action by the regional office. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that service connection should be established for a back disability since his current back condition is the direct result of a parachuting accident that occurred while he was on active duty stationed in South Korea in 1964. 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 warrants a grant of service connection for spondylolisthesis of L5-S1. FINDINGS OF FACT 1. The veteran sustained an injury to his back while on active duty in July 1965 while skydiving. An X-ray study of the lumbar spine showed minimal spondylolisthesis. 2. Spondylolisthesis of L5 - S1 was shown on VA X-ray study in June 1977. That condition was also shown on a December 1991 VA X-ray. 3. Spondylolisthesis of L5-S1 had its onset during his active military service. CONCLUSION OF LAW Spondylolisthesis of L5-S1 was incurred during the veteran's active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that it has found the veteran's claim for service connection for a back disability to be "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant facts regarding that claim have been properly developed. The veteran's service medical records reflect that he was seen at a dispensary in July 1965 after injuring his back while skydiving. An X-ray study of the lumbar spine showed a suggested defect of the pars interarticularis of L5 with "minimal if any associated spondylolisthesis." A VA X-ray study of the veteran's lumbosacral spine in June 1977 showed a spondylolisthesis of L5 - S1 with bilateral pars interarticularis defects. The spondylolisthesis of L5 on S1 was again shown on a VA X-ray study in December 1991. In the Board's opinion, the evidence of record is adequate to establish that this specific low back condition had its onset during his period of active military service. Accordingly, it follows that service connection for spondylolisthesis of L5-S1 is warranted. 38 U.S.C.A. §§ 1110, 1131. In arriving at its decision in this regard the Board has resolved all doubt in favor of the veteran. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for spondylolisthesis of L5-S1 is established. The appeal is granted to this extent. REMAND The veteran's service medical records reflect that he was seen on an outpatient basis in August 1961 with a complaint of stomach pain. It was indicated that his history was suggestive of ulcerative disease. Antacids were prescribed. When the veteran was examined by the VA in August 1975, a gastrointestinal X-ray series showed gastroesophageal reflux without a demonstrable hiatal hernia. The stomach and duodenal bulb were reported to be normal. In the October 1975 rating action, service connection was granted for esophageal reflux and that condition was evaluated as 10 percent disabling. In a substantive appeal dated in September 1987, the veteran indicated that ulcers had been diagnosed at Fort Sill, Oklahoma, in 1967 and that he had been treated at that facility through 1976. He stated that his treatment continued at the VA Medical Center, Oklahoma City, from 1976 to 1983 and at the VA Medical Center, Birmingham, from 1983 to the current time. The record also discloses that in a July 1977 statement, the veteran had indicated that he had been treated for ulcers at the Reynolds Army Hospital, Fort Sill, and had been receiving medication at the VA Hospital, Oklahoma City, for arthritis. Later in July 1977 records of the veteran's treatment at the VA Medical Center, Oklahoma City, beginning in March 1977 were requested and records dating from that time were received; however, records of any pre-1977 treatment were not requested. The regional office also in July 1977 wrote to the Reynolds Army Hospital and asked for any records of treatment of the veteran beginning in January 1972. However, no response was received from that facility. In July 1986, the regional office requested copies of hospital summaries and outpatient treatment reports from the VA Medical Centers, Birmingham and Oklahoma City, for the periods, respectively, from 1985 and from 1977. In August and September 1986, VA medical records reflecting treatment from 1980 to 1986 were received, evidently from the Birmingham Medical Center. However, it is not clear whether the Oklahoma Medical Center responded and whether records of treatment at that facility from 1977 are available. The Board also notes that evidence of record reflects that the veteran has other low back impairment in addition to the spondylolisthesis of L5-S1. In view of the foregoing matters and in order to afford the veteran every consideration, the case is REMANDED for the following actions: 1. The United States Army Hospital, Fort Sill, Oklahoma, and/or the relevant records repository should be contacted and asked to provide copies of any records of treatment of the veteran in his retired status for the period from 1972 to 1976. The VA Medical Center, Oklahoma City, should be asked to provide copies of any records of treatment of the veteran from 1976. Any such records obtained should be included with the claims file. 2. The veteran should be requested to provide the names, addresses, and approximate dates of treatment for any other health care providers who may possess additional records pertinent to his claims. When the requested information and any necessary authorization have been received, the RO should attempt to obtain copies of all indicated records which have not previously been secured. 3. If the evidence received pursuant to the above development establishes that either of the veteran's claims apart from that related to the back is well grounded, the RO should undertake any other indicated development, to include obtaining appropriate VA examination(s). 4. Whether or not VA examinations are found to be required for the other claims, the veteran should be accorded an appropriate examination with all indicated studies to determine the nature of all low back pathology present. The claims folder is to be made available to the examiner(s), from whom it is requested that an opinion be provided as to whether any other low back impairment present is etiologically related to the spondylolisthesis of L5-S1. 5. Thereafter, the RO should readjudicate the veteran's claims. If the benefits sought on appeal are not granted to the veteran's satisfaction, the veteran and his representative should be sent a supplemental statement of the case and be afforded the appropriate time in which to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the veteran until he receives further notice. The purpose of this REMAND is to obtain clarifying information. The Board intimates no opinion as to the disposition warranted regarding the remaining matters on appeal pending completion of the requested action. SHANE A. DURKIN DEREK R. BROWN JAMES R. ANTHONY FRANK J. FLOWERS WILLIAM J. REDDY MARY M. SABULSKY 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 final decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. The above remand portion of the decision 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).