Carroll v. Brown

8 Vet. App. 128, 1995 U.S. Vet. App. LEXIS 592, 1995 WL 475953
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 11, 1995
DocketNo. 93-595
StatusPublished

This text of 8 Vet. App. 128 (Carroll v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carroll v. Brown, 8 Vet. App. 128, 1995 U.S. Vet. App. LEXIS 592, 1995 WL 475953 (Cal. 1995).

Opinion

FARLEY, Judge:

This is an appeal from a March 2, 1993, decision of the Board of Veterans’ Appeals (BVA or Board) which declined to reopen the appellant’s claim for service connection for a low back disorder, finding that new and material evidence had not been submitted. This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons that follow, the Court will vacate the Board decision and remand the matter for further adjudication.

I.

The appellant served in the U.S. Marine Corps from August 6, 1964, to August 16, 1966. Record (R.) at 16. , No abnormal findings regarding her back were noted during her induction physical examination, and she did not report any. R. at 18-21. In a March 1966 treatment record, the examining doctor stated that the appellant had mentioned a knee injury- she experienced during high school. R. at 72. In May 1966, she suffered from a number of fainting episodes, and complained that she injured her right shoulder and upper back during one of them. R. at 83-84. The examining doctor’s impression was “myositis [secondary] to pulled muscle.” R. at 84. Myositis is “inflammation of a muscle.” Stedman’s Medical DictionaRY (Stedman’s) 1018 (25th ed. 1990). No back or spine problems were noted in her July 1966 separation physical. R. at 87-88. On August 9, 1966, just before her separation, she received emergency treatment for back pain after playing softball, and the doctor diagnosed her with lumbosacral strain. R. at 93. During a follow-up examination four days later, she reported that two years earlier she had been informed that she had a “slipped disc” with a “pinched nerve.” R. at 95. The diagnosis was again lumbosacral strain. Ibid.

In January 1968, after a pregnancy, the appellant complained of low back pain, and the examining doctor stated, “Back injury in physical] education class] in high school; had [lumbosacral] strain then.” R. at 107, 127. The same doctor later stated that the appellant had a “back injury in Marine Corps [with lumbosacral] strain” (R. at 1245), and he diagnosed her with acute lumbosacral strain (R. at 107). After getting ice massage treatments, she was listed as asymptomatic. R. at 109. She complained of low back pain again in April, June, and December 1968 and January 1969 (R. at 111-14, 137), and a December 1968 x-ray revealed “rotoscoliosis with compromise L-5, S-l disk” (R. at 365). Rotoscoliosis is “[e]urvature of the vertebral column by turning on its axis.” Stedman’s at 1372. The doctor who examined the appellant in December 1968 wrote that she told him that her back pain was “[r]ecurrent since 1958.” R. at 112, 148. The doctor who examined her in January 1969 gave his impression as “early degenerative disease due to unequal [weight] bearing” and prescribed flexion exercises. R. at 114.

The appellant complained of back pain several times from 1970 to 1974, although some of the complaints were apparently due to injuries at work. R. at 159, 163, 169, 261, [130]*130275-77, 279, 296, 304, 306, 344, 423, 428, 442. An April 1971 clinical record reports, “According to the patient, this is the third episode of low back pain. The first episode was while she was in school. She was performing some physical exercises when she fell on her back, flat.... The second episode was just after the delivery of her first child.” R. at 276. The appellant underwent an examination in February 1975, and the doctor noted that her back was tender, and that an x-ray showed “a mild scoliosis in the lumbar area convexed to the left. The 5th lumbar inter-space is narrowed. There are no arthritic changes.” R. at 169. The doctor also stated, “There is not sufficient evidence to consider surgery and I believe her principle disability arises from a mixture of anxiety and depression related to her difficult life situation.” R. at 169-70.

In March 1981, the appellant fell at work and severely strained her lumbosacral spine. R. at 229. During a May 1981 examination, the appellant stated that she had had back pain intermittently since 1972, and that she “has had about one back injury a year while working.” R. at 232. The doctor stated that she had “a possible lumbar disc syndrome.” R. at 233. An x-ray revealed “joint space narrowing at L5-S1.” R. at 235. A lumbar myelogram revealed “[bjony changes at L5-S1 but with no radiographic evidence for disc” (R. at 237), and an epidural venogram showed “narrowing of the venous complex at and just below the L5 vertebral body on the left compatible with change related to a left lateral disc herniation at L5-S1 with some upward extension” (R. at 238). On May 12, 1981, the appellant underwent a laminectomy and disc excision at L5-S1 on the left, and was discharged from the hospital six days later. R. at 241-42.

The appellant applied for service connection in September 1981 for back, leg, and shoulder conditions (R. at 485-88), and underwent a VA examination (R. at 490-99). The examining doctor stated, “There is tenderness and spasm all about the lumbar spine region.” R. at 499. An x-ray revealed “moderately severe narrowing of the L5-S1 disc space with sclerosis of the adjacent vertebral end plates and some anterior bony spurring changes!;] all of these changes are suggestive of degenerative disc disease.” . R. at 492. Her claim was denied in December 1981. R. at 506-07. The regional office (RO) noted the appellant’s pre-service back injury in high school and also the post-service back injuries, and stated that the “[b]ack injury ... in service [is] considered acute and transitory without evidence of chronic residuals and not related to present disabil-it[y].” Ibid. The appellant did not file a timely appeal.

The record contains several references to back problems between 1983 and 1987. In an August 1983 letter, Dr. Michael Davis wrote that he had seen the appellant since July 1982 for numerous problems, including “orthopaedic complaints due to previous lam-inectomy,” and that one of her “chief problems” was the orthopedic complaints. R. at 539. She was involved in a car accident in March 1985, and a doctor who examined her reported that she was suffering from back pain due to the accident. R. at 575. In 1986 she complained of back pain frequently, and many examinations and tests were performed. See, e.g., R. at 709, 711, 815, 830-32, 834-35, 950.

The appellant attempted to reopen her claim in September 1986. R. at 653-56. In June 1987, a VA orthopedic examination was performed on the appellant, and the doctor’s impression was “[p]ostoperative residuals herniated intervertebral disk lumbar spine.” R. at 965. In a July 1987 rating decision, the RO stated, “Multiple medical reports currently received deal with treatment many years after the fact and do not provide a new and material basis nor new factual basis for reconsideration of [service connection].” R. at 985.

A January 1988 hospital record reported a diagnosis of “degenerative disc disease involving lumbar spinal levels L4-5, L5-S1, and L3-4.” R. at 1036. The doctor’s examination revealed “diffuse tenderness over the mid and lower spine, along midline well healed surgical incision at level L5-S1.” R. at 1037. A VA doctor who performed a September 1988 VA examination also diagnosed degenerative disc disease. R. at 1050. [131]*131In October 1988, the appellant underwent a lumbar fusion. R. at 1058-62.

The appellant attempted to reopen her claim in March 1989, and during a hearing held at the RO, she testified about her back injuries during service. R. at 1109-10.

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Bluebook (online)
8 Vet. App. 128, 1995 U.S. Vet. App. LEXIS 592, 1995 WL 475953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carroll-v-brown-cavc-1995.