Citation Nr: 0007783 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-08 141A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from September 1951 to September 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in October 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was the subject of a Board remand dated in August 1999, and was the subject of a December 1999 hearing before the undersigned Board member. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. There is evidence of an inservice back disability, to include possible spondylolisthesis first noted after an automobile accident; lay evidence of continuity of symptomatology since service; and medical evidence of current disability due to chronic sprain/strain and spondylolisthesis. CONCLUSION OF LAW The claim for service connection for back disability is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background During the veteran's September 1951 service entrance examination, clinical evaluation of the spine was normal. Service medical records dated in February 1952 relate that veteran was treated for a sore back after a day of performing a day of heavy lifting. February 1955 reveal that the veteran injured his back in an automobile accident on February 19, 1955. He was hospitalized from February 19 to February 25. X-rays revealed possible spondylolisthesis of S-1 with loss of lordotic curvature. Further X-rays were suggested but not obtained prior to the veteran's discharge from treatment on February 25. During the hospital course, the veteran became asymptomatic on bed rest and no specific medications. A service medical record dated in February 28, 1955, shows that the veteran still had pain in his back. Service medical records dated in March 1955 and April 1955 reflect continuing treatment for back pain. Clinical evaluation of the spine was normal during the veteran's August 1955 separation examination. June 1997 and July 1997 written statements from the veteran's niece (who is a registered nurse) and friend, respectively, describe the observation of back pain in the veteran for the past 20 years or more. The veteran's niece reported observing low back pain radiating to the buttocks with muscle spasm and paresthesia. Randolph Gregson, D.C., reported in July 1997, having treated the veteran from 1982 to 1992 for low back pain. A February 1999 X-ray report from Kenneth J. Mishkin, M.D., includes an impression of osteoarthritis and degenerative disc disease of the lower lumbar spine. During his December 1999 Board hearing, the veteran testified that he had experienced back pain ever since his inservice automobile accident. He testified that he began receiving treatment for his back problems within one year after discharge from service, and intermittent treatment since that time. In a December 1999 letter, Yolanda Lobo, M.D., noted the veteran's history of an inservice automobile accident. She stated that his other past history was unremarkable and that the veteran denied having any other trauma to his back. After objective examination and X-rays of the veteran's back, the diagnosis was decreased range of motion and chronic low back pain due to chronic sprain/strain and spondylolisthesis. Analysis In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (1999). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim for service connection to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well- grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. In the present case, there is evidence of an inservice back disability, to include possible spondylolisthesis first noted after an automobile accident; lay evidence of continuity of symptomatology since service; and medical evidence of current chronic disability due to chronic sprain/strain and spondylolisthesis. The Board finds this evidence sufficient to well ground the veteran's claim for service connection for back disability. Savage. ORDER The claim for service connection for back disability is well grounded; the veteran's appeal is granted to this extent only. REMAND As noted above, the Board has found the veteran's claim for service connection for back disability to be well grounded. The Board is of the opinion that the duty to assist the veteran in development of his claim requires a VA examination and opinion. On the basis of the above and pursuant to 38 C.F.R. § 19.9, the Board determines that further development of the evidence is essential for a proper appellate decision and, therefore, remands the matter to the RO for the following action: 1. The RO should ask the veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, VA or private, who have evaluated or treated him for back disability. After obtaining any required releases from the veteran, the RO should request copies of all indicated records which have not been previously obtained or determined to be unavailable. 2. The veteran should be scheduled for a VA orthopedic examination to determine the nature and etiology of his current back disability. The examining physician should render an opinion as to whether it is as likely as not (a 50 percent or more likelihood) that any current back disability is related to the veteran's inservice car accident. The physician's attention is directed to the medical history reflected in the claims file, to include the veteran's service medical records, especially records of treatment and hospitalization in February 1955 after a car accident, which include diagnosis by X-ray of possible spondylolisthesis with loss of lordotic curve; and a December 1999 report from Yolanda Lobo, which includes diagnosis of chronic low back pain due to sprain/strain and a Grade I spondylolisthesis of L5 on S1. If the physician determines that the veteran did not incur spondylolisthesis during service, he should discuss the degree of certainty with which he makes this finding. The claims folder and a copy of this remand must be made available to the examiner for review. It should be indicated by the examiner whether the claims folder was reviewed. 3. Prior to the examination, the RO must inform the veteran, in writing, of all consequences of his failure to report for the examination in order that he may make an informed decision regarding his participation in said examination. 4. After the above examination is conducted, the RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If a report does not include sufficient data or an adequate response to the specific questions posed, the report must be returned to the examiner for corrective action. 38 C.F.R. § 4.2. 5. Then, the RO should undertake any other indicated development, and readjudicate the issue on appeal. If the benefit sought on appeal is denied, then the appellant and his representative should be provided with a supplemental statement of the case which reflects RO consideration of all additional evidence and an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. The purposes of this REMAND are to obtain clarifying medical information and to ensure that the veteran is afforded due process of law. RENÉE M. PELLETIER Member, Board of Veterans' Appeals