Citation Nr: 0000053	
Decision Date: 01/03/00    Archive Date: 12/28/01

DOCKET NO.  93-12 874	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, 
Pennsylvania


THE ISSUE

Entitlement to service connection for a low back disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Schechter, Associate Counsel


INTRODUCTION

The veteran served on active duty from January 12, 1954, to 
March 23, 1954.

The appeal arises from the September 1991 rating decision, in 
the form of a letter, of the Department of Veterans Affairs 
(VA) Regional Office (RO) in Pittsburgh, Pennsylvania, 
confirming a prior, final RO denial in May 1989 of service 
connection for a low back disability. 

In the course of appeal, the veteran testified before a 
hearing officer at the RO in November 1992.  A copy of the 
hearing transcript is included within the claims folder

Following perfection of an appeal, the Board in June 1995 
found that new and material evidence had been submitted 
pertaining to the claim for service connection for a low back 
disability, and accordingly reopened the claim and remanded 
it for appropriate development and a determination by the RO 
based on the merits of the claim.  Following development and 
RO review of the claim in subsequent rating decisions and 
Supplemental Statements of the Case, upon return of the case 
to the Board, the Board in January 1997 again remanded the 
claim for further development.  The claim has now been again 
returned to the Board.  

FINDINGS OF FACT

1.  There is evidence of the veteran having sustained a pre-
service back injury in February 1953.

2.  On the pre-enlistment examination in January 1954, there 
was no evidence of residuals of pre-service back injury; all 
that was noted was a thoraco-lumbar scoliosis at L1, which is 
a developmental abnormality.  

3.  The veteran was discharged from service in March 1954 due 
to a chronic lumbosacral strain.  

4.  A chronic lumbosacral strain developed during service.


CONCLUSION OF LAW

A chronic lumbosacral strain was incurred in wartime service.  
38 U.S.C.A. §§ 1110, 5107(a) (West 1991 and Supp 1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Following the reopening of this claim by the Board in June 
1995 and a remand at that time for VA examination and 
adjudication of the claim on the merits, there has been 
serious non-compliance with the Board's instructions.  This 
resulted in the case again being remanded in January 1997.  
Since the 1997 remand we have a second VA examination which 
was non-responsive to the Board's questions, and in which the 
VA physician did not review the record.  Thereafter, the 
problem was further compounded by the issuance of a 
Supplemental Statement of the Case in August 1999, which held 
that new and material evidence had not been submitted to 
reopen the claim for service connection for a low back 
disorder.  This procedural error, in itself, would require a 
due process remand (which would be a third remand) as 
correctly pointed out by the veteran's representative.  

The Board will not remand this issue a third time, because 
the evidence developed since 1995 is favorable to the veteran 
and supports allowance of the appeal.  There is no clear and 
unmistakable evidence of a chronic pre-service acquired back 
disability, such as to rebut the presumption of soundness at 
enlistment.  38 U.S.C.A. §§ 1111, 1137 (West 1991).  All that 
was noted on the pre-enlistment examination was a 
thoracolumbar scoliosis at L1, which is ordinarily considered 
a developmental abnormality.  Service connection cannot be 
granted for a developmental abnormality.  38 C.F.R. § 3.303 
(c) (1999).  There is evidence of a pre-service back injury 
in February 1953, residuals of which were not noted on the 
pre-enlistment examination.  The Board has thus concluded, 
consistent with the evidence and the laws and regulations, 
that the presumption of soundness applies as regards acquired 
low back pathology, and that any residuals of a February 1953 
pre-service low back injury were acute and transitory and 
subsided without residual disability.  

	As such, the veteran entered service with only a 
developmental thoracolumbar scoliosis.  Evidence added to the 
claims folder in August 1998, consisting of additional 
service medical records, shows that he was discharged from 
service with a chronic lumbosacral strain.  The notation that 
this disorder pre-existed service is not sufficient to rebut 
the presumption of soundness at enlistment.  It is 
inconsistent with clinical findings on the pre-enlistment 
examination and, as such, cannot constitute clear and 
unmistakable evidence of the pre-service existence of 
acquired low back pathology.  Accordingly a proper basis is 
afforded for granting service connection for a chronic 
lumbosacral strain.  


ORDER

Service connection for a low back disability is granted.   



		
BRUCE E. HYMAN
Member, Board of Veterans' Appeals