Dr. Bash is a veteran of

Citation Nr: 0515336

Decision Date: 06/07/05 | Archive Date: 06/15/05

On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida

Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disorder, diagnosed as advanced degenerative arthritis of the lumbar spine.

Appellant represented by: Sean Kendall, Attorney at Law

Suzie S. Gaston, Counsel

The veteran served on active duty from July 1965 to July 1968, and from February 1991 to September 1991. He also had inactive and active duty for training with the United States Marine Corps Reserve.

Service connection for a back disorder was previously denied by the Board of Veterans' Appeals (hereinafter Board) in a decision of January 1997. The veteran appealed the Board's January 1999 decision to the United States Court of Appeals for Veterans Claims (Court), which in a July 1999 decision affirmed the Board's decision.

This current matter comes before the Board on appeal from a rating decision of December 2002, by the St. Petersburg, Florida, Regional Office (RO), which denied the veteran's claim of entitlement to service connection for osteoarthritis of the lumbar spine, history of back injury.

Although the RO determined that new and material evidence had been submitted to warrant reopening the veteran's claim for service connection for osteoarthritis of the lumbar spine, history of back injury, the Board as the final fact finder within VA, must initially determine whether new and material evidence has been submitted regardless of the RO's actions. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Therefore, the issue has been characterized as noted on the title page.

1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained by the RO.

2. In a January 1997 decision, the Board denied entitlement to service connection for a back disorder, based upon a finding that the evidence did not demonstrate a nexus between the back disorder and any inservice injury or disease.

3. Evidence added to the record since the January 1997 Board decision includes new evidence relating a back disorder to service, and thus bears directly and substantially upon the specific matter under consideration; it is so significant that it must be considered in order to fairly decide the merits of the claim.

4. The competent medical evidence of record is in relative equipoise as to whether the veteran's current back disorder, diagnosed as advanced degenerative arthritis and spondylolisthesis, developed as a result of his inservice injury.

1. The January 1997 Board decision denying service connection for low and mid-back conditions is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2004).

2. New and material evidence has been received since the January 1997 Board decision sufficient to reopen the veteran's claim for service connection for a back disorder. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (effective prior to August 29, 2001).

3. With resolution of reasonable doubt in the veteran's behalf, the Board finds that a low back disorder, currently diagnosed as advanced degenerative arthritis of the lumbar spine, was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154(b), 5103, 5107 (West 2002); 38 C.F.R. §§ 3.303(d), 3.307, 3.309 (2004).

VCAA. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). In addition, VA promulgated regulations to implement the provisions of the law. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). The Board is granting the veteran's claim for service connection for a back disorder, diagnosed as advanced degenerative arthritis of the lumbar spine. Hence, any failure to comply with VCAA requirements as to this issue would not be prejudicial to the veteran. Bernard v. Brown, 4 Vet. App. 384 (1993).

To establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2004). When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during the veteran's service, or by evidence that a presumption period applied. See 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004).

"Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." See Pond v. West, 12 Vet. App. 341, 346 (1999); see also Rose v. West, 11 Vet. App. 169, 171 (1998). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when: (1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307) and the veteran presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period), but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the veteran's present condition. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997).

In the case of a disease only, service connection also may be established under section 3.303(b) by evidence of (1) 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.

By a decision in January 1997, the Board denied the veteran's claim of entitlement to service connection for low and mid- back conditions. When the Board or the RO has disallowed a claim, it may not thereafter be reopened unless new and material evidence is submitted. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2004).

New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2004); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

There was a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This law redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. The final regulations implementing the VCAA were published on August 29, 2001, and they apply to most claims for benefits received by VA on or after November 9, 2000, as well as any claim not decided as of that date, such as the one in the present case. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

The Board observes that the implementing regulations modify the definition of new and material evidence and provide for assistance to a claimant on claims to reopen. 38 C.F.R. §§ 3.156(a), 3.159(c). However, the regulation provisions affecting the adjudication of claims to reopen a finally decided claim are applicable only to claims received on or after August 29, 2001. 66 Fed. Reg. at 45,620. Because the veteran's request to reopen the previously denied claim of service connection for a back disorder was received prior to that date, in February 2000, those regulatory provisions do not apply.

In any event, since the Board finds that new and material evidence has been received, there is no need for further discussion of the VCAA until completion of the development the Board is requesting as a result of reopening the claim. The Board is granting the veteran's claim to reopen the previously denied claim for service connection for a back disorder. No additional evidence is required to make a determination in this case and, hence, any failure to comply with VCAA requirements as to this issue would not be prejudicial to the veteran. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Bernard v. Brown, 4 Vet. App. 384 (1993).

In order to determine whether new and material evidence has been presented, the Board looks to the last final disallowance of this claim. The Board must look to the evidence added to the record since the January 1997 Board decision. The evidence received after January 1997 is presumed credible for the purposes of reopening the veteran's claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995).

The record indicates that the veteran served on active duty from July 1965 to July 1968 and from June 16, 1991 to September 30, 1991, with additional reported service in the U.S. Marine Corps Reserves between his periods of active duty. The service medical records indicate that the veteran was seen in February 1966 with complaints of back pain. He was again seen in May 1966 for complaints of pain in the spine; at that time, he was diagnosed with lumbosacral strain. The veteran was seen at sickbay in October 1967 with complaints of back pain in the lower areas for the past 1-1/2 years. X-ray study of the lumbar spine revealed a lumbar scoliosis with maximal convexity to the left at L3-L4. There was also a prominent lordotic curvature on the lateral view. The separation examination was negative for any complaints or findings of a low back disorder.

Examination reports during the periods of service in the reserves, between 1970 through 1990, are completely silent with respect to any complaints, findings or treatment for a back disorder.

The veteran filed a claim for service connection in October 1991. On the occasion of a VA examination in March 1993, he complained of pain in the back ever since he injured his back in 1967; he reported being knocked off a cliff during a mortar attack in Vietnam. The veteran also indicated that a Dr. Sandberg at Oakland General Hospital diagnosed him with degenerative disc disease, lumbar spine. Following a physical examination, the veteran was diagnosed with osteoarthritis, lumbar spine with very mild rotoscoliosis. Another VA examination was conducted in February 1995, at which time the veteran continued to complain of low back pain. The pertinent diagnosis was sacroiliac arthralgia.

At a personal hearing in August 1995, the veteran testified that he has suffered from back problems ever since he fell off a cliff in Vietnam while carrying a full pack on his back. The veteran indicated that he has continued to experience back pain, and he was currently receiving treatment, which included physical therapy.

Of record is a medical statement from Dr. Craig N. Bash, dated in December 1999, noted that the veteran had several back injuries and multiple episodes of back pain during his active duty from 1966 to 1968. He noted that the injuries to the veteran's back have become more clinically apparent as the years passed, as it was stated during the 1993 VA examination. Dr. Bash also noted that the veteran's back disease has progressed over the years from his original inservice injuries. Dr. Bash stated that it has been well documented that patients who injures the spinal column discs and ligaments are at a high risk of developing, many years later in life, advance degenerative sequela which becomes progressively more symptomatic as the patient ages. He explained that often these patients go through periods of time when they may have relatively normal abbreviated physical examinations. Dr. Bash stated it was his opinion that the veteran's multiple inservice back injuries, which are well-documented and required treatment, are likely the major cause of his current back disability.

The veteran was afforded a VA compensation examination in December 2002, at which time he reported suffering numerous low back injuries in service, all of which occurred while on active duty in the 1960's; these injuries were all diagnosed as lumbosacral strain. The examiner noted that the veteran has had recent x-rays and examinations in the 1990's, which show some degenerative spondylolisthesis of the lumbar spine. The veteran complained of daily pain, associated with a midline burning pain that radiates with a fire-like pain into the hips, does not go into the legs, but sometimes radiates up the middle of the spine. It was noted that the veteran's back pain was associated with prolonged standing and walking. The veteran wore a soft lumbar brace frequently with some relief. Following a physical evaluation, the examiner concluded that the veteran had a chronic low back pain most likely secondary to the lumbosacral arthritis and spondylolisthesis. The examiner stated that the contribution from the inservice injuries was highly speculative. The examiner stated that, after reviewing the claims folder, he had to say that the preponderance of the evidence indicates that the veteran's degenerative disease of the lumbar spine, which has become symptomatic over the last 10 years, is the primary cause of his chronic low back condition, and is not associated with the inservice injury.

Received in August 2003 was a statement from Dr. Craig B. Nash, dated in May 2003, wherein he stated that the VA examiner's opinion was inaccurate, incomplete and not supported by the medical data contained in the veteran's claims folder. Dr. Bash explained that it is well known that injuries to the spine early in life often lead to advanced degenerative changes later in life to the resultant chronic ligament laxity and spine instability. Dr. Bash also noted that the VA examiner did not provide any alternative cause for the veteran's arthritis. He stated that while the VA examiner indicated that the veteran had arthritis, which has been symptomatic for 10 years, he did not provide any rationale for the reason why the veteran has pain and advanced spine arthritis in his mid-forties. Dr. Bash further notes that the VA examiner's opinion, wherein he stated that.."the veteran's current low back disorder (lumbosacral arthritis and spondylolisthesis) could very well be because of his injuries" support the medical theory that the veteran's current back problems were caused by his inservice injuries.

In December 2003, the VA examiner who conducted the December 2002 examination was asked to again review the veteran's folder, including Dr. Bash's May 2003 medical statement. The examiner observed that while Dr. Bash's references were entirely correct, they were a single authored and non-peer reviewed. The VA examiner indicated that Dr. Bash's previous description of abbreviated and incomplete clinical evaluation was uninformative in the context of position because he has never actually examined the veteran. The VA examiner concluded that, in the final summary, the veteran had a chronic degenerative spinal condition that may or may not at least in part due to some mild lumbosacral trauma as previously documented. He explained that the amount of contribution of those previous incidents was entirely speculative; however, he noted that it was likely that they do contribute somewhat. The examiner also explained that this is a chronic condition and thus likely the vast majority of his condition has developed over the intervening 40 years. He concluded that it was as likely as not that the veteran's current condition has been somewhat affected by his previous spine trauma.

In May 2004, the Board requested an expert medical opinion. In a March 2005 opinion, Dr. Francis X. Camillo, an orthopedist with the Campbell Clinic, stated that he had reviewed the claims file. Dr. Camillo stated that it was his opinion that the veteran's current low back pain disorder of advanced degenerative arthritis and spondylolisthesis certainly could have resulted from the injuries he sustained while he was in service. Dr. Camillo explained that advanced degenerative arthritis as well as spondylolisthesis involved a sequence of events that occurs within the spine. He further noted that this disorder normally begins with degeneration of the disk level causing degenerative disk disease, which subsequently results in laxity and increased load on the facet joints; this in turn accelerates the facet joint degeneration. Dr. Camillo indicated that, while it is true that disk degeneration is a natural process of aging in which the nucleus pulposus becomes dehydrated and tears occur in the annulus fibrosis, it is also true that trauma can cause similar changes in the disk. Dr. Camillo concluded, given the veteran's multiple complaints of back pain after the injury and documentation of being seen, it was his opinion that the injuries the veteran sustained in service certainly could have initiated and caused his advanced degenerative arthritis as well as his spondylolisthesis of the lumbar spine.

The evidence received since the Board's January 1997 decision includes opinions from physicians suggesting that the inservice injuries could have contributed significantly to the veteran's current low back disorder. This medical evidence constitutes new and material evidence, as it bears directly and substantially upon the specific matter under consideration and, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. Accordingly, the Board finds that the evidence received subsequent to the Board's January 1997 decision serves to reopen the veteran's claim for service connection for a back disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2004).

Having reopened the appellant's claim of entitlement to service connection for a back disorder, it is now incumbent upon VA to consider her claim on the merits.

Upon a review of the evidence, the Board finds that a grant of service connection for a back disorder, diagnosed as osteoarthritis of the lumbar spine is warranted in this case. The law is clear that when the evidence is in relative equipoise as to the merits of an issue, the benefit of the doubt in resolving the issue is to be given to the veteran. 38 U.S.C.A. § 5107(b). In this case, the record clearly indicates that the veteran served on active duty from 1965 to 1968, and that during this time he was seen on several occasions for complaints of pain in the spine; he was diagnosed with lumbosacral strain. In addition, in October 1967, X-ray study of the lumbar spine revealed a lumbar scoliosis with maximal convexity to the left at L3-L4; he also had a prominent lordotic curvature on the lateral view. The veteran has consistently reported being knocked off a cliff during a mortar attack in Vietnam. The post-service medical evidence includes multiple diagnosis of a back disorder, beginning in February 1993, when a VA examiner reported a diagnosis of osteoarthritis of the lumbar spine, with very mild rotoscoliosis.

Subsequently, the post-service medical evidence include December 2002 and December 2003 VA examination reports which, in essence, indicate that the veteran's in-service trauma did not necessarily lead to the veteran's currently diagnosed advanced degenerative arthritis. In December 2002, the examiner stated that the preponderance of the evidence indicates that the veteran's degenerative disease of the lumbar spine, which has become symptomatic over the last 10 years, is the primary cause of his chronic low back condition, and is not associated with the inservice injury. Subsequently, in December 2003, the VA examiner who conducted the December 2002 examination concluded that, in the final summary, the veteran had a chronic degenerative spinal condition that may or may not at least in part due to some mild lumbosacral trauma as previously documented. He explained that the amount of contribution of those previous incidents was entirely speculative; however, he noted that it was likely that they do contribute somewhat. The examiner also explained that this is a chronic condition and thus likely the vast majority of his condition has developed over the intervening 40 years.

However, the evidence also includes multiple statements from Dr. Craig N. Bash, which indicate that the veteran's multiple inservice injuries, which are well documented and required treatment, are likely the major cause of his current back disorder. Moreover, in a medical expert opinion, obtained by VA in March 2005, Dr. Francis X. Camillo concluded "given the patient's multiple complaints of back pain after the injury and documentation of being seen, it is certainly my opinion that the injuries he sustained in the service certainly could have initiated and caused his advanced degenerative arthritis as well as his spondylolisthesis of the lumbar spine."

Given the above described medical evidence, the evidence is deemed to be at least in relative equipoise as to whether the veteran's currently diagnosed back disorder is of service origin. As previously indicated, when the evidence is in relative equipoise as to the merits of an issue, the benefit of the doubt in resolving the issue is to be given to the appellant. As such, resolving the benefit of the doubt in favor of the veteran, the Board finds that service connection for a back disorder, currently diagnosed as advanced degenerative arthritis of the lumbar spine, is warranted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).

New and material evidence having been received, the claim of entitlement to service connection for a back disorder, diagnosed as advanced degenerative arthritis of the lumbar spine, is reopened.

Service connection for a back disorder, diagnosed as advanced degenerative arthritis of the lumbar spine, is granted.

Gary L. Gick

Veterans Law Judge, Board of Veterans' Appeals

drbash@doctor.com

______________________

Craig N. Bash M.D., M.B.A.

Neuro-Radiologist and Associate Professor

Uniformed Services School of Medicine

NPI/UPIN-1225123318

4938 Hampden Lane
Bethesda, Md 20814

Cell/Text 240-506-1556
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