Citation Nr: 1749052	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  09-14 728	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for entitlement to service connection for Bertolotti's syndrome and shortening of the right leg.

2.  Entitlement to service connection for Bertolotti's syndrome and shortening of the right leg.

3.  Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a low back disability.  

4.  Entitlement to service connection for a low back disability


REPRESENTATION

Appellant represented by:	Deanne L. Bonner Simpson, Attorney at Law


ATTORNEY FOR THE BOARD

M. Riley, Counsel


INTRODUCTION

The Veteran served on active duty from January 1953 to April 1953.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine which, in pertinent part, found that new and material evidence had not been received to reopen the service connection claims on appeal.  Jurisdiction over the claims file is currently held by the RO in Detroit, Michigan. 

In June 2009, the Veteran requested a hearing before a hearing officer at the RO.  The Veteran twice rescheduled the hearing until June 2011, when he withdrew the hearing request.  The Board will therefore proceed with a decision in this case.  

In May 2012, the Board denied the claims to reopen service connection for Bertolotti's syndrome and a low back disability.  The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court).  In January 2014, the Court granted a Joint Motion for Remand (JMR) filed by the parties vacating and remanding the May 2012 Board decision.  The appeal was returned to the Board and in October 2014 it was remanded for further development, to include verifying the Veteran's active military service and locating all service treatment records.  The case has once again returned to the Board for additional appellate action.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).





FINDINGS OF FACT

1.  The claims for entitlement to service connection for Bertolotti's syndrome with shortening of the right leg and a back condition (characterized as right hip and back disabilities) were initially denied in a July 1963 Board decision.

2.  The evidence received since the July 1963 Board decision is not cumulative and redundant of other evidence of record and raises a reasonable possibility of substantiating the claims.

3.  A chronic spine, hip, and lower extremity disability were not noted on the Veteran's examination for enlistment; the Veteran's Bertolotti's syndrome with shortening of the right leg and a low back disability clearly and unmistakably existed prior to active duty service, but were not clearly and unmistakably not aggravated as a result of such service.  

4.  The Veteran's Bertolotti's syndrome with shortening of the right leg and a low back disability are etiologically related to active duty service.


CONCLUSIONS OF LAW

1.  New and material evidence has been received to reopen service connection for Bertolotti's syndrome with shortening of the right leg.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016).

2.  Service connection for Bertolotti's syndrome with shortening of the right leg is warranted.  38 U.S.C.A. §§ 1110, 1111 (West 2014); 38 C.F.R. § 3.303.

3.  New and material evidence has been received to reopen service connection for a low back disability.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).

4.  Service connection for a low back disability, diagnosed as lumbosacral transitional vertebrae with associated scoliosis and symptoms of back pain and sciatica, is warranted.  38 U.S.C.A. §§ 1110, 1111; 38 C.F.R. § 3.303.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Claims to Reopen

The Veteran filed initial claims for entitlement to service connection for back and left leg disabilities in March 1962.  The claims, characterized as Bertolotti's syndrome and shortening of the right leg and a left leg injury by the RO, were denied in an April 1962 rating decision.  The Veteran appealed the April 1962 decision to the Board.  His claims were categorized as service connection for right hip, back, and left leg disabilities and were denied in a July 1963 Board decision.  The Board found that the claimed right hip and back disabilities pre-existed active duty service and were not aggravated therein.  The Veteran did not appeal the July 1963 denial of his claims and the Board decision is final.  38 U.S.C.A. § 7103 (West 2014); 38 C.F.R. §§ 20.1100, 20.1104 (2016).

The evidence of record at the time of the July 1963 Board decision included the Veteran's service treatment records, clinical records from the Ann Arbor and Saginaw VA Medical Centers (VAMCs) dated in February, July, and December 1962, statements from the Veteran and his family, and the transcript of a June 1963 hearing before the Board.  In its decision, the Board found a disability was not identified at the Veteran's induction examination, but the presumption of soundness was rebutted with clear and unmistakable evidence that a back and right hip disability existed prior to service and were not aggravated therein.  The Board also found that service connection for a left leg injury, however diagnosed, was not warranted.  

In November 2007, the Veteran filed a claim to reopen service connection for back and right hip disabilities, contending that the conditions were incurred due to injury during active service.  The evidence received since the July 1963 Board decision includes an October 2017 medical opinion report from a VA expert in neurological surgery who provided evidence in support of the Veteran's claims.  This expert medical evidence is new as it was not previously considered and is material as it relates to a previously unestablished fact in the claim, namely, that the presumption of soundness is not rebutted and the Veteran's disabilities were incurred due to active duty service.  Thus, new and material evidence has been received and reopening of the claims is granted.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  


Reopened Claims

The Veteran contends that service connection is warranted for the disabilities on appeal as they were incurred or aggravated during active duty service.  The Veteran clearly manifests a current disability: post-service treatment records dating from January 1962 show diagnoses of Bertolotti's syndrome, right leg shortening, and several low back disabilities, to include a transitional vertebra and degenerative joint and disc disease.  A private medical opinion report dated in March 2017 also confirmed findings of Bertolotti's syndrome due to a transitional lumbar vertebra and shortening of the right leg due to pre-existing Legg Calve Perthes disease with associated problems of the lumbar spine.  The first element of service connection is therefore present for both service connection claims.   

The record contains some evidence that the Veteran's conditions may have pre-existed his enlistment into active duty in January 1953.  A Veteran who served during a period of war is presumed to be in sound condition when enrolled for service, except for any defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment.  38 U.S.C.A. § 1111.  Only such conditions as are recorded in examination reports are to be considered as "noted."  38 C.F.R. § 3.304(b).  The presumption of soundness can be rebutted if clear and unmistakable evidence demonstrates that the disease or injury existed prior to service and was not aggravated by such service.  38 U.S.C.A. § 1111.  

The Veteran's low back and lower extremities were characterized as physically normal at the October 1952 induction examination.  In January 1953, he was seen with pain over the right shin after stepping in a hole.  He reported having poliomyelitis (polio) as a child with a loss of muscle mass in the right leg.  The Veteran's condition was found to exist prior to enlistment and he was treated with rubs and heat treatment.  Several days later, in February 1953, the Veteran reported pains in the leg and thigh with a backache.  A history of polio at the age of 10 was recorded along with a finding of severe right leg atrophy.  

The Veteran was referred to the orthopedic clinic in February 1953 and again reported a history of polio when he was 10 years old.  He stated that he has walked with a limp since childhood and was unable to walk or run more than a moderate distance.  The orthopedist identified a one inch shortening of the right leg, compensatory scoliosis of the spine when standing, obvious atrophy of the right gluteal muscles, and a positive Trendelenburg gait when standing on the right leg.  A limited profile was recommended due to "sequela of old polio."  

A service Medical Board examination was performed in April 1953 which noted a 3/4 inch shortening of the right leg and a pelvic tilt to the left side with "C" curve scoliosis.  The examiner noted the Veteran's history of acute paralysis associated with febrile illness at the age of 10 with current aching pain in the right leg and hip during and after prolonged weight-bearing.  The Veteran had difficulty keeping up with his outfit in basic training because of his limp and pain.  He was diagnosed with arthritis of the right hip of an undetermined cause.  The Medical Board examiner also found that the condition existed prior to enlistment and was not incurred in the line of duty.  

A second orthopedic consultation was provided on April 10, 1953 at the Army Hospital at Camp Rucker, Alabama.  X-rays of the thoracic and lumbar spine were normal, but a right hip X-ray established marked flattening and widening of the femoral head and shortening of the femoral neck with osteoarthritic spurs.  The right leg was shortened by one inch and the Veteran presented with significant neurological findings.  The orthopedist was unable to state when and what were the initial cause of the Veteran's hip pathology, but found the Veteran had "either a slipped capital femoral epiphysis or a late Perthes' disease."  There was sufficient current pathology to constitute a nonacceptable defect and the Veteran was again diagnosed with right hip arthritis of an undetermined cause that existed prior to service.  During the examination, the Veteran stated that he did not feel his military experience had permanently aggravated his condition, and he was discharged on account of physical disability later that month.  

In this case, the Board finds that the presumption of soundness is not rebutted; although the Veteran's right hip, lower extremity, and low back condition clearly and unmistakably existed prior to service, the Board cannot conclude they were not clearly and unmistakably aggravated therein.   With respect to whether the disability existed before enlistment, the Veteran consistently reported while no active duty a history of right leg and gait abnormalities prior to service and reported on several occasions his condition was a residual of childhood polio.  An April 1953 Medical Board examiner specifically found that the Veteran's disability existed prior to enlistment and a similar conclusion was reached by an orthopedist in April 1953.  More recently, a March 2017 private physician and October 2017 VA expert in neurosurgery opined that the Veteran's transitional lumbar anatomy and associated shortening of the right leg with lumbar spine problems clearly and unmistakably pre-existed the Veteran's enlistment in active military service.  Although the Veteran has stated on multiple occasions that he did not have a back condition prior to enlistment, the Board finds that the contemporaneous history he provided during active duty is more probative than that offered 50 years after the events in question.  The Board therefore concludes that the Veteran's claimed disabilities clearly and unmistakably existed prior to service.  

In order to rebut the presumption of soundness, the record must demonstrate that a disability clearly and unmistakably pre-existed active duty service and was not aggravated therein.  See 38 U.S.C.A. § 1111.  The October 1952 enlistment examination did not record any abnormalities of the low back or right lower extremity, but only a few months later the Veteran was seen in January 1953 for complaints of pain after stepping in a hole.  The Veteran's disability progressed throughout active duty to the point where he was discharged due to physical disability in April 1953 only four months after enlistment.  Service records contain statements from medical professionals and the Veteran that his disability was not aggravated by active duty, but the Board finds this is not sufficient to rebut the presumption of soundness, especially in light of the March 2017 private medical opinion and October 2017 VA expert medical opinion finding aggravation of the pre-existing disabilities due to in-service injuries.  Therefore, the Board cannot conclude that the pre-existing low back and right lower extremity disabilities were not clearly and unmistakably aggravated during active duty service.  The presumption of soundness is not rebutted and the Board must consider the Veteran's claims as ones for direct service connection and not aggravation.  Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). 

The evidence establishes a link between the Veteran's claimed disabilities and active service.  Service records clearly document the Veteran's complaints of pain after stepping in a hole in January 1953 and the diagnoses of right leg shortening, spinal scoliosis, and either a slipped capital femoral epiphysis or a late Perthes' disease during active duty.  The record also contains medical opinions dated in March 2017 from a private physician and October 2017 from a VA expert in neurosurgery providing a nexus between the Veteran's current disabilities and injuries during active duty.  This evidence is sufficient to establish a link between the Veteran's current disabilities and active military service.  All three elements of service connection are present and the Board finds that service connection for Bertolotti's syndrome and shortening of the right leg, as well as lumbosacral transitional vertebrae with associated scoliosis and symptoms of back pain and sciatica is warranted.


ORDER

New and material evidence having been received, reopening of the claim for Bertolotti's syndrome and shortening of the right leg is granted. 

Entitlement to service connection for Bertolotti's syndrome and shortening of the right leg is granted.


New and material evidence having been received, reopening of the claim for a low back disability is granted. 

Service connection for a low back disability, currently diagnosed as lumbosacral transitional vertebrae with associated scoliosis and symptoms of back pain and sciatica, is granted.  




____________________________________________
M. H. Hawley
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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