Citation Nr: 0601359 Decision Date: 01/17/06 Archive Date: 01/31/06 DOCKET NO. 03-08 781A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for lumbosacral strain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nathan Paul Kirschner, Associate Counsel INTRODUCTION The appellant served with the Army National Guard for several years and was ordered to active duty in the United States Army (Army) from September 1990 to August 1991 to support Operations Desert Shield/Storm. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Montgomery, Alabama. In March 2004 the RO denied the appellant's claim of entitlement to service connection for lumbosacral strain. The Board remanded this appeal to the RO for further development in December 2004. After the RO attempted the requested development, the RO continued the denial of service connection for lumbosacral strain. FINDING OF FACT The veteran has a back disability that began during service while service in Southwest Asia. CONCLUSION OF LAW Low back disability was incurred in service. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The appellant asserts that service connection is warranted for lumbosacral strain. He asserts that he incurred the claimed condition during service in Operation Desert Shield/Storm in Saudi Arabia. The appellant states, in the form of a DA 4700, that he strained his back while in Saudi Arabia. Written statements from fellow service members state that appellant often went on "sick call" for back pain, for which he received medication at that time. Service connection may be granted for disability resulting from disease or injury incurred or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. See 38 C.F.R. § 3.303(d). In such instances, a grant of service connection is warranted only when, "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." Id. The appellant's service medical records showed that, in an examination report from July 1991, the veteran checked the box indicating, "Recurrent back pain." In a DA Form 4700, dated in July 1991, he reported that he had injured his back while serving in Southwest Asia and that it occurred as a result of lifting. The veteran also submitted three buddy statements stating that he went to sick call for back pain. As for the relevant post-service medical evidence, it consists of VA medical records from 1994-1995, National Guard medical records, and private medical reports from 1992-2003. The VA medical record from 1994 stated, "Hurt back in 1990 in Persian Gulf - was sent to PT - given muscle relaxers - never stopped hurting - lumbar spine area." There were further reports of low back pain in 1995. Records associated with the veteran's National Guard service include annual medical certificates from 1995, 1996, and 2000 where the veteran noted, "SM is taking Motrin 500 mg for back problem," "Back problem - Problem exists since Saudi - going to VA - taking motrin .500 mg treated for back problem," and, "Injured back in Gulf War." The certificates further noted, "SM is taking Motrin 500 mg for back problem," and "continued back problems." The veteran's medical history from March 1997 contained a similar notation "Back Problem Treated at VA hospital in Pensacola Florida." A notation on a VA form 21-4142 filled out by Dr. Hugh D. Long showed that he treated the veteran in 1999 for "Disc Displace." Other private medical reports indicate that the veteran underwent an "L5-S1 posterior lumbar with interbody fusion with pedicle screw fixation from L5 to S1" in May 2001. A VA Spine examination report dated in February 2005 showed that the examiner gave an impression of postoperative L5-S1 posterior lumbar interbody fusion with pedicle screw fixation from L5 to S1. There was increased pain on motion in the veteran's back. The examiner also stated that due to a lack of medical evidence it was difficult to offer an opinion as to whether the veterans back disability began in service. The examiner was unable to either rule in or rule out the claim based on the evidence of record and, he could only say that "his currently diagnosed back disorder was as likely as not manifested during his service." The Board finds that service connection for low back disability is warranted. The veteran's service medical records show that he complained of recurrent low back pain in service as a result of injuring his back while lifting. The veteran has also submitted three buddy statements stating that his low back pain began in service. The Board has found that a layperson, such as the veteran or those who submitted buddy statements on his behalf, is competent to testify as to observable symptoms. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). Whether one has back pain, or goes to sick call for back pain, can be observed by a layperson. Moreover, his complaints reported on his separation medical history and DA Form 4700 are consistent with his VA medical record in 1994. The veteran's most recent VA Spine examination showed a diagnosis of postoperative L5-S1 posterior lumbar interbody fusion with pedicle screw fixation from L5 to S1. Finally, the VA examiner from the February 2005 VA Spine examination indicated that the current disability was "as likely as not" related to the veteran's service. As the VA Examiner relates these symptoms to the veteran's service, the Board finds that there is at least a relative balance of positive and negative evidence regarding the onset of the veteran's low back disability, and the benefit of the doubt must therefore be resolved in favor of the claimant. See 38 U.S.C.A. § 5107(b) (West 2002); see also 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Even though there is no direct in- service diagnosis of a chronic back disability, the veteran's reports of pain, supported by buddy statements, are lay statements as to observable symptoms, and it is reasonable to conclude that a low back disability may have been present. There is a fairly good record of continuing complaints after service and he now has been diagnosed with postoperative L5- S1 posterior lumbar interbody fusion with pedicle screw fixation at S1 as shown in the most recent VA examination. As such, the Board finds that service connection for the low back disability is warranted. II. VCAA There has recently been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). The new law includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA was implemented with the adoption of new regulations. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326a. In this case, in a letter, dated in July 2001, the veteran was notified of the VCAA, and of his duties to obtain evidence. Furthermore, as the Board has granted the veteran's claim for a service connection, a detailed discussion of the VCAA is unnecessary. Any potential failure of VA in fulfilling its duties to notify and assist the veteran is essentially harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for low back disability is granted. ____________________________________________ C. W. SYMANSKI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs