BVA9505700 DOCKET NO. 93-10 310 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased evaluation for lumbosacral strain, currently rated as 20 percent disabling. 2. Entitlement to service connection for degenerative joint disease secondary to the service-connected lumbosacral strain. 3. Entitlement to service connection for degenerative disc disease secondary to the service-connected lumbosacral strain. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran had active service from January 1951 to October 1952. This case is before the Board of Veterans' Appeals (the Board) on appeal from a March 1993 rating decision which denied a compensable evaluation for lumbosacral strain. The case was referred to the Regional Office (RO) for further development by the Board in a January 1994 remand. The requested development was accomplished and the rating decision of August 1994 granted the veteran a 20 percent disability evaluation for his service- connected lumbosacral strain, denied the claim for service connection for degenerative joint disease of the lumbosacral spine, and reopened and denied the veteran's claim for service connection for degenerative disc disease of the lumbosacral spine. In light of the following decision as to the issue of service connection for degenerative disc disease, the Board has deferred appellate review of the issues of an increased evaluation for lumbosacral strain and service connection for degenerative joint disease. Therefore, the case will be returned to the RO for action on these issues upon completion of the Board's action on the appeal for service connection for degenerative disc disease. The Board further notes that both the veteran and his representative have indicated that the veteran is no longer employable. It is not clear from the record whether the veteran wishes to raise a separate issue of entitlement to a total disability rating based on individual unemployability due to his service-connected disabilities. This matter is referred to the RO to obtain clarification from the veteran or his representative as to his intent, and then for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his accredited representative contend that service connection is warranted for degenerative disc disease on a secondary basis. The representative asserts that the medical opinion contained in the recent VA examination report, dated in March 1994, warrants a grant of service connection based on the doctrine of reasonable doubt and the guidelines of Gilbert v. Derwinski. 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 degenerative disc disease of the lumbar spine. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran injured his low back in service and was treated for a lumbosacral strain. 3. Lumbar degenerative disc disease was first medically demonstrated in 1972. 4. Recent medical evidence indicates that the veteran's current degenerative disc disease of the lumbar spine is etiologically related to or the result of the service-connected lumbosacral strain. CONCLUSION OF LAW Degenerative disc disease of the lumbar spine is proximately due to or the result of the service-connected lumbosacral strain. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.310(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION A person who submits a claim for benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107. After reviewing the evidence on file we conclude that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the claim presented is not inherently implausible. Furthermore, we conclude that all facts pertinent to the plausible claim have been developed and that as such, there is no further duty to assist in developing the claim as contemplated by 38 U.S.C.A. § 5107(a). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection may also be granted for disability which is proximately due to or the result of a service- connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. Initially, it is noted that in a December 1972 decision the Board denied service connection for degenerative disc disease of the lumbar spine. The RO has apparently reopened this claim, as it considered the issue on its merits in the recent denial of the claim. The Board will concede that new and material evidence has been submitted to reopen the claim and will, therefore, proceed with review on a de novo basis. A review of the veteran's service medical records reveals that the service entrance examination, dated in November 1950, was negative for any evidence of a back disorder or disability. Service treatment records show that the veteran was seen in July 1951 for back pain after a fall while carrying a 75mm. recoilless rifle. The diagnosis was a strain of the erector spinae muscles. The veteran was then treated again in October 1951 for back pain; treatment included adhesive strapping. Several days later he was hospitalized for back pain and unrelated symptoms. The veteran gave a history of back pain for the preceding three weeks. An x- ray of the lumbar spine was reported to be negative; an orthopedic examination resulted in a diagnostic impression of a mild lumbosacral strain. The service separation examination report, dated in September 1952, indicated a normal back. Medical statements from private physicians, dated in 1972, show the veteran received treatment for chronic low back pain with a history relating back to the inservice episode in 1951. One physician noted that X-rays showed moderate degenerative changes at vertebrae L-1-2 and L-2-3 levels which he related to "occupational or perhaps injury history (20 years ago?)." The doctor also found an abnormality of the posterior element at the vertebrae 4-5 level with either a posttraumatic or congenital variation of the facets and probable overriding. The diagnostic impression was degenerative disc disease, lumbar spine, and history of probable low back sprain and strain, 1951, during military service. A statement from a private physician, dated in 1973, indicated the veteran had been diagnosed to have an old lumbar disc with persistent pain and nerve deficit. A medical statement from a private physician, dated in 1974, reported a diagnosis of degenerative disc disease at vertebrae L-1-2 with recurrent low back sprain. A written statement from one of the veteran's comrades-in-arms, dated in October 1974, indicated that he recalled the veteran reporting to sick call on about October 1951 and that he did not return for approximately one month. The veteran also testified in November 1974 as to the details of how he injured his back in service, the severity of his current condition, and his belief that the in-service injury must have been more serious than a sprain because of the length of time he was hospitalized. A medical statement from a private physician, dated in July 1975, indicated that x-ray of the lumbar spine revealed degenerative changes at vertebrae L1-2 and L2-3 levels as well as post- traumatic abnormalities at the vertebrae L4-5 level. The relevant diagnoses were: (1) degenerative disc disease of the lumbar spine; and (2) injury to the lumbar region in 1951. The veteran was afforded a VA medical examination in October 1975. The examiner noted that from his history the veteran definitely strained his back in 1951 while lifting the heavy caliber rifle; however, the physician further noted that the veteran returned to duty after one month treatment in field hospitals. Furthermore, the veteran had stated that he stopped working in 1971 because of high blood pressure, reported at that time to be 200/110. X-ray of the lumbosacral spine indicated that there was significant disc space narrowing between vertebrae L1 and 2 and L2 and 3 with marked anterior spur formation and sclerosis of the articular plate of these 3 vertebral bodies. There was also anterior spur formation of vertebra L5 with bilateral pars interarticularis defects at L5 and a grade 1 slip of vertebra L5 on vertebra Sl. There was no evidence of any abnormal paravertebral soft tissue shadowing and the sacroiliac joints were normal. The final diagnoses were: 1. Lumbosacral sprain 2. Spondylolisthesis with bilateral pars defects at L5 3. Degenerative disc disease at L1-2, L2-3 interspaces VA outpatient treatment records, dated from 1988 to 1992, show treatment for low back pain, and other unrelated medical disorders. In a written statement, dated in April 1993, and testimony at a personal hearing held in August 1993, the veteran indicated that he had never injured his back prior to the 1951 injury, and he had suffered with continuous back pain since that incident. Following service he saw one doctor and self-medicated for the pain. The degenerative condition was first diagnosed approximately 15 years after his discharge from service. Following service, he worked as a warehouseman, truck driver, and railroad switchman. None of these jobs involved heavy lifting and he never reinjured his back. In 1972 he was working at a transportation depot at a military base when he was medically retired because of hypertension. The veteran was afforded a VA medical examination in March 1994. The examination report indicated physical findings of paraspinous muscle tenderness in the lower lumbar segment, limitation of motion, and a positive Goldwaite's sign for lumbar facet pain. X-rays of his dorsolumbar spine revealed severe degenerative disc disease at L1-2, L2-3, and L3-4 as well as spondylolysis of L5- S1, Grade 1 or 2, with bilateral pars articularis defect at the L5 level. The medical examiner commented that the fact the veteran had a strapping applied to his back in service indicated a rather severe injury, even though the diagnosis at that time was lumbar strain. He also highlighted the fact that he supposedly had a negative x-ray in service in 1951 which indicated that either the medical reviewer did not notice the pars interarticulariris defect at vertebra L5 or that it occurred from a stress fracture brought on by the service-connected injury in 1951. If it was congenital, then it should have been picked up on the 1951 x-ray. He also noted that the spondylolysis was related to the degenerative disc disease and might have caused it. He further opined that: I do not feel there is any way to totally rule out the fact that the service connected injuries do not cause and/or aggravate this spondylolysis condition in his lower lumbar spine and since his condition is associated with acute and chronic back pain and with the development of degenerative changes. I feel he is entitled to some service connected disability....I do not feel all the degenerative arthritic changes that this man has developed were the result of the service-connected injury and I feel that a fair assessment would be that 50% of the impairment could be related to the service related injuries that were sustained in 1951. Again, this is arbitrary but I feel as close as I could come to a fair assessment in this man's case. I do not agree with the previous medical examiners of this individual that he did not sustain any significant permanent injuries to his back as a result of the service-connected injuries in 1951. I think they are well documented in the record and could have been serious enough in nature to cause a portion of the degenerative disc condition that he has developed. The Board finds the medical opinion of the latest VA examiner to be significant evidence in support of the veteran's claim for secondary service connection for degenerative disc disease. That report suggests that the disc disease in the lumbar area of the trauma and resulting lumbosacral strain would be related to the strain. With this additional evidence, the Board further finds that the evidence of record is now in relative equipoise, with an approximate balance of positive and negative evidence, thus requiring application of the benefit-of-the doubt rule under 38 U.S.C.A. § 5107(b). Zn v. Brown, 6 Vet.App. 183, 195 (1994); Williams v. Brown, 4 Vet.App. 270, 273-74 (1993); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Consequently, service connection, on a secondary basis, is warranted for degenerative disc disease of the lumbar spine. ORDER Service connection for degenerative disc disease of the lumbar spine, secondary to the service-connected lumbosacral strain, is granted. REMAND The Board has determined that the veteran's case should be REMANDED in order for the RO to re-evaluate the remaining issues of service connection for degenerative joint disease of the lumbar spine and an increased rating for his low back disability. Any evidentiary development deemed necessary, to include a special VA orthopedic examination, should be accomplished. If the benefit sought continues to remain denied, the claims folder should be returned to the Board for further consideration. This is to be done after compliance with prescribed procedures for the processing of appeals, including the issuance of a supplemental statement of the case, which should include any additional laws and regulations considered pertinent, with opportunity for the veteran and his representative to respond. HOLLY E. MOEHLMANN 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. 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.