Citation Nr: 1003480 Decision Date: 01/25/10 Archive Date: 02/01/10 DOCKET NO. 07-24 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Armstrong, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1992 to November 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). In September 2009, a Travel Board hearing was held before the undersigned; a transcript of this hearing is of record. FINDING OF FACT The evidence reasonably establishes that the Veteran has thoracolumbar disc disease (with T-12 compression fracture residuals) that was incurred in service. CONCLUSION OF LAW Service connection for thoracolumbar disc disease (with T-12 compression fracture residuals) is warranted. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on this matter; any notice defect or duty to assist failure is harmless. B. Factual Background A July 1993 service treatment record (STR) shows that the Veteran complained of back pain; possible back strain was noted. A December 1993 STR shows that the Veteran complained of back pain for one month. It was noted that he may have pulled a muscle. A December 3, 1993 sick slip shows that the Veteran injured his back during physical training. A December 21, 1993 sick slip shows he had back pain and was to refrain from physical training. A February 1994 STR shows that the Veteran complained of low back pain (recurrent from a few months back) for two days. A February 1994 STR shows he had lower back pain; was put on physical profile, and was to refrain from marching, jumping, and sit-ups. In a February 1994 medical consultation it was recommended that the Veteran attend a "PT Back Class" due to recurrent low back pain. A May 1994 STR shows that the Veteran complained of low back pain that was greater on the left than the right. Flexoril was prescribed. A May 1994 physical profile shows that due to low back pain the Veteran was to avoid sit-ups, but could do push-ups at his own pace. The Veteran's August 1994 separation examination report notes that he was treated for low back pain during service. A December 2003 private treatment record shows that the Veteran received therapy for a T12 compression fracture. On August 2005 VA examination the Veteran complained of intermittent middle and low back pain with stiffness and occasional radiating leg pain; his pain had an intensity of 4 out of 10. The pain was treated with Voltaren with no side effects. Regarding the low back pain, the examiner noted that documentation in the Veteran's STRs supported the opinion that "it is at least as likely as not related to the Veteran's military service." A March 2006 Addendum to the August 2005 VA examination states, "After review of the Veteran's [l]umbar and thoracic spine films, the correct diagnosis of his service connected spine condition is as follows: (1) Degenerative disc disease of T11 to L1 (2) Mild anterior compression fracture of T12." A January 2006 VA outpatient treatment record notes that the Veteran complained of back pain that started while in military service and was treated with pain medication. It was noted that the Veteran had back pain since 1993 and that he had experienced a pop in his back which was treated with Motrin and muscle relaxant. On February 2006 VA examination, the Veteran reported low to mid-back pain that was usually localized to the low back but occasionally radiated up the neck. He reported flare-ups occurring once or twice a month when he had to be off his feet for two or three days. He reported that his back pain began in 1993 when he twisted his back during physical training. The diagnosis was low back pain. A March 2006 addendum to the February 2006 VA examination states that "to clarify low back pain [the Veteran is] noted to have low back condition related to degenerative disc disease of T11 to L1 and mild anterior compression fracture of T12." A January 2009 private medical assessment details the Veteran's work limitations due to low back pain. C. Legal Criteria and Analysis Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The record shows a diagnosis of a low back disability, thoracolumbar disc disease with residuals of compression fracture of T12. The Veteran's STRs show he sustained back injuries and had recurrent complaints of back pain during service. Hence, what is needed for him to establish service connection for back disability is competent (medical) evidence of a nexus between his current back disability and the complaints/injuries in service. An August 2005 VA examiner opined that the Veteran's current back disability was at least as likely as not related to his service. As the examiner is a medical professional, he is competent to offer such opinion; it is probative evidence in this matter. As there is no competent (medical) evidence to the contrary, it is persuasive. Service connection for thoracolumbar disc disease with residuals of T-12 compression fracture is warranted. ORDER Service connection for thoracolumbar disc disease (with T-12 compression fracture residuals) is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs