On appeal from the Department of Veterans Affairs (VA) Regional Office in Denver, Colorado
THE ISSUES
1. 1.Entitlement to service connection for degenerative disk disease (DDD) of the lumbar spine, L4-5.
2. Entitlement to service connection for sacroiliac joint dysfunction with instability and hypennobility.
3. Entitlement to service connection for a right hip and leg disorder, including as secondary to DDD of the lumbar spine, L4-5.
REPRESENTATION
Appellant represented by: Colorado Division of Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Turner, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1973 to February 1975.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2005 and June 2008 rating decisions of the Department of Veterans Affairs Regional Office (RO) in Denver, Colorado.
The Veteran testified at a hearing before a decision review officer (DRO) at the RO in March 2009. Subsequently, he testified before the undersigned Acting Veterans Law Judge at an October 2009 hearing. Transcripts of these proceedings have been associated with the claims file.
This case was previously before the Board in January 2010 at which time the claim was remanded for further development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998).
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. Affording the Veteran the benefit of the doubt, it is at least as likely as not that DDD of the lumbar spine, L4-5 was incurred during the Veteran's military service.
2. Affording the Veteran the benefit of the doubt, it is at least as likely as not that sacroiliac joint dysfunction with instability and hypermobility was incurred during the Veteran's military service.
Affording the Veteran the benefit of the doubt, it is at least as likely as not that a right hip and leg disorder was incurred during the Veteran's military service.
CONCLUSION OF LAW
1. DDD of the lumbar spine, L4-5 was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011).
2. Sacroiliac joint dysfunction with instability and hypermobility was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011).
3. A right hip and leg disorder was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran contends that he has DDD of the lumbar spine, L4-5, sacroiliac joint dysfunction with instability and hypermobility, and a right hip and leg disorder as a result of his military service. Specifically, the Veteran claims that he sustained these injuries while jumping on a trampoline in service. He came down wrong and his coccyx or low back hit a metal support bar of the trampoline. Since that time he has had low back pain and intermittent numbness and pain in his right hip and leg.
Legal Criteria
Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be competent evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).
In addition to the above requirements, there are alternative methods of establishing service connection under 38 C.F.R. § 3.303(b). For example, a claimant may establish service connection by chronicity. Chronicity is established if the claimant can demonstrate ( 1) the existence of a chronic disease in service and (2) present manifestations of the same disease. See Savage v. Gober, 10 Vet .App. 488 (1997). Alternatively, the claimant may establish service connection by continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate ( 1) that a condition was "noted" during service; (2) there is post service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Savage, 10 Vet. App. at 495.
Facutal Background
Service treatment records reflect that the Veteran injured himself on a trampoline in November 1973, when he hit his back. When moving his hip the Veteran felt shooting pain and a burning sensation down the back of his right leg. The Veteran reported that he was jumping on the trampoline, came down hard and hit the cross bar under the trampoline. He was tender on the right side of the spinal area. He stated that his right leg went numb after the accident. His reflexes were normal. The impression was a possible pinched nerve and muscle strain. In June 1974 the Veteran was again seen with complaints of neck and back pain and numbness in the right leg. In September 1974 he was seen with complaints of pain in the right lower lumbar area which he related had been present since the trampoline injury.
The Veteran asserted that he felt pain consistently since the trampoline accident which had gotten worse in recent years. In a letter dated in August 2006 the Veteran reported that he had back pain and right leg and hip pain ever since the trampoline accident. He submitted five letters from his brother, son, and three friends, two of whom, with his brother, asserted that the Veteran complained of back pain ever since the trampoline accident. In the case of his son, he wrote that that his father always had low back pain and symptoms in his upper right leg. Another friend wrote that he knew the Veteran since 197 5 and his low back and right leg had been hurting since that time. The Veteran testified to the injury and history of back and right leg symptoms since then at a hearing before a DRO in March 2009 and a hearing before the undersigned Acting Veterans Law Judge in October 2009. The Veteran also credibly asserted that he sought treatment in the 1980s, but the records of that treatment were destroyed because of their age. This was corroborated by his son.
The first documented treatment for the Veteran's back was chiropractic and acupuncture treatment in 1998 for low back discopathy. While several injuries were noted in the chiropractic treatment records, which did not include the trampoline accident, no cause for the Veteran's low back problems was set forth.
A March 2004 treatment record reflects that the Veteran reported trauma to his low back while jumping on a trampoline and struck his low back on a metal bar. At that time he reported an onset of back pain 10 years earlier with intermittent radiculopathy. At that time, it was felt that the Veteran's back problems were caused by a difference in leg length. X-rays showed degenerative disk disease. A December 2004 treatment note shows a diagnosis of L4-L5 central disk bulge, per magnetic resonance imaging (MRI) scan, with right sided sciatica.
According to an October 2005 VA treatment record, the Veteran indicated that he had intermittent back pain since the trampoline accident in 1974 but had an exacerbation in 1993 when he was carrying rocks at work. This resulted in increased burning pain into the right lower extremity. There was onset of symptoms in the bilateral lower extremities, but the symptoms in the left leg had since gone away and he was back to symptoms in his right buttock and leg. He had physical therapy the previous year with a home exercise program emphasizing extension, but some of the stretches were no longer easily done or helpful. An MRI in the last year showed a small central disk bulge at L4-5 but no stenosis or lateral recess limitations. The Veteran related that he had numbness in his right leg and buttock region. This was not particularly helped by medication. Upon examination the Veteran appeared to be weak in his hip internal rotators compared to all other muscles. There was a stretch and tightness with piriformis stretch with reproduction of some of the buttock symptoms. At that time, the Veteran was diagnosed with lumbar pain, L4-5 minimal central disk bulge, and a tight piriformis with piriformis syndrome with secondary sciatic compression.
The Veteran was subsequently diagnosed with sacroiliac joint hypermobility/laxity with impaired mobility and chronic back pain due to same. This was originally diagnosed by a VA rehabilitation doctor and then by the Veteran's VA general practitioner. He was also noted to have a somewhat unstable right hip with walking and with transfers.
At a VA examination in October 2005 the Veteran reiterated his story about hitting his lower back on a metal bar on a trampoline. At that time he related that his back continued to bother him during his military service and after service in several physical occupations that he had, and in the past 10 years it had got progressively worse. At that time, he was diagnosed with degenerative disk disease of the lumbar spine. In a November 2005 addendum to this opinion the examiner opined that the Veteran's current low back disorder was not related to his military service. Significantly, the examiner noted that while the Veteran did injure his low back in service, this injury was acute as the Veteran did not complain of low back pain again until 1998. Also, the examiner noted that the mechanism of injury to the low back during service (a direct blow) is not usually associated with a disc injury. Furthermore, the examiner noted that the Veteran had a significant post-service work history of physical work (such as carrying heavy rocks working as a mason on an oil rig in 1998). Therefore, the examiner opined that the Veteran's current low back disorder was the result of a lifetime of accumulated stress and injury and less likely than not related to the acute lumbar strain while in military service in 1973.
In March 2006 the Veteran reported the sudden onset of symptoms following an in service trampoline accident at a physical therapy consult and they have been off and on since then.
X-rays of the pelvis and spine in June 2006 found no findings to correlate with the Veteran's instability of the right hip.
The Veteran again reported the onset of pain in the sacral area since hitting a metal object under a trampoline. He was not seen again for this pain until several years ago. He reported self medicating with drugs and alcohol instead of seeking treatment.
In an undated statement the Veteran reported that he had back pain ever since the trampoline accident in service. He stated that the pain was not always debilitating but it was always there. At times it would get worse in his lower back, right hip, and leg and it would feel like his leg would go out from under him. Symptoms got worse in 1990 and continued to get worse since then.
In another undated letter the Veteran again reiterated that his back hurt since the trampoline accident in service. He denied hurting his back at any time after service. He related that he saw chiropractors for his back since shortly after service.
In a September 2009 Dr. C.N.B. indicated that he had reviewed the Veteran's claims file and opined that the Veteran's back problems were related to the trampoline injury in service. Specifically, Dr. C.N.B. wrote that the Veteran had a serious lumbar spine injury in service, which was due to an axial load (load parallel to long axis of the spine) which likely damaged his disc and ligaments as axial loads are known to damage ligaments and disc soft tissue structures. Once these structures are damaged they are susceptible to causing advanced for age DDD. Dr. C.N.B. also wrote that the records did not support another more plausible etiology for the Veteran's lumbar spine pathology or other risk factors (in or out of service) to explain his problems other than his service time experiences. Also, Dr. C.N.B. wrote that the Veteran's lay statements were consistent with his medical history and his spouse's lay statements also supported long-standing spine problems.
Furthermore, Dr. C.N.B. wrote that the early spine films were negative as was the Veteran's neurologic examination which was to be expected as those tests were relatively insensitive for ligament injuries. Moreover, Dr. C.N.B. wrote that he understood that the Veteran had some manual labor gigs throughout his life but it was Dr C.N.B.'s opinion that had the Veteran not had his service time injury of the low back, that his manual labor intermittent work would not have caused his current spine problems. In other words, Dr. C.N.B. wrote that the Veteran's service time injury to the low back weakened his spine making it susceptible to further injury while he was working manual labor. It was therefore Dr. C.N.B.'s opinion that the manual labor aggravated the Veteran's service time spine injury. Dr. C.N.B. wrote that the time lag interval between the Veteran's service time injury and his subsequent development of signs and symptoms of back pain was consistent with known medical principles and the natural history of this disease. Dr. C.N.B. also discounted the November 2005 VA opinion, indicating that the VA examiner incorrectly described the in-service injury as a direct blow rather than an axial loading injury and did not consider the Veteran's lay statements of continuity of symptomatology.
Pursuant to the January 2010 Board remand the Veteran was afforded another VA examination in August 2010. Upon examination of the Veteran the examiner diagnosed lumbosacral DDD. With regard to sacroiliac joint dysfunction the examiner noted that sacroiliac joint dysfunction with instability and hypermobility was a controversial topic as described in "Up To Date" and was not felt to be a valid diagnosis. Significantly, the examiner noted that the Veteran had been evaluated by two orthopedists and Neurosurgery who did not validate this diagnosis. With regard to the right hip, the examiner noted that the right hip and leg disability was related to referred pain from the Veteran's lumbosacral DDD and was not a separate problem or diagnosis. The August 2010 VA examiner opined that the Veteran's current low back disorder was not related to his in-service injury as there was no record of significant problems related to the low back from the Veteran's discharge from service until 1998 and it was more likely than not that the Veteran's lumbosacral DDD was related to his post-service employment as a heavy laborer.
ANALYSIS
Given the above, the Board finds that service connection for lumbosacral DDD, sacroiliac joint dysfunction with instability and hypermobility, and a right hip and leg disorder is warranted. Significantly, as above, service treatment records show a significant injury to the low back in November 1973 with subsequent complaints of back pain and numbness in the right leg in June and September 1974. While the record is negative for complaints of or treatment for a low back disorder from the Veteran's discharge from military service in 1975 until 1998, the Veteran has given a consistent lay history of back pain since the trampoline injury in service. This is initially documented with multiple follow up visits in service for continued back pain. While there are no records of treatment from service until 1998, the Veteran credibly asserted that he did seek treatment since shortly after service, which was corroborated by his son, but the records were unavailable due to their age. VA treatment records reflect degenerative disk disease with a disk bulge at the L4-L5 areas, sacroiliac joint dysfunction with hypermobility and instability, and right sided sciatica.
Furthermore, in a September 2009 statement Dr. C.N.B. related the Veteran's low back and associated disorders to the Veteran's trampoline accident in service. This provides a plausible basis to conclude that these disorders are related to his military service. The Board acknowledges that both the November 2005 and August 2010 VA examiners came to the opposite conclusion. However, the VA opinions were based in part on the absence of treatment records between service and 1998. As such they ignored the Veteran's credible history of back pain since service and earlier treatment for back pain. Moreover, the August 2010 VA examiner's opinion that the Veteran did not have sacroiliac joint dysfunction or a right hip and leg injury is not supported by the Veteran's VA treatment records, which consistently show diagnoses and treatment for these disorders.
With resolution of all reasonable doubt in the Veteran's favor, it is concluded that the evidence supports service connection for lumbosacral DDD, sacroiliac joint dysfunction with instability and hypermobility, and a right hip and leg disorder. 38 U.S.C.A. § 5107(b).
Notice and Assitance
VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5_102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.
ORDER
Service connection for DDD of lumbar spine, L4-5 is granted.
Service connection for sacroiliac joint dysfunction with instability and hypermobility is granted.
Service connection for a right hip and leg disorder is granted.
APRIL MADDOX
Acting Veterans Law Judge, Board of Veterans' Appeals
