Citation Nr: 1103493 Decision Date: 01/26/11 Archive Date: 02/01/11 DOCKET NO. 03-26 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: Robert W. Legg, Attorney at Law ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from June 1943 to February 1946. When this matter was initially before the Board in June 2008, the Board denied service connection for low back disability. The Veteran appealed the Board's June 2008 decision to the United States Court of Appeals for Veterans Claims (Court), which in a November 2009 order, granted the parties' joint motion for remand, vacating the Board's June 2008 decision and remanding the case for compliance with the terms of the joint motion. When this matter was again before the Board in April 2010, the Board remanded this case to comply with the terms of the Court's November 2009 order. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Lumbar disc disease had its onset in service. CONCLUSION OF LAW Lumbar disc disease was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this decision, the Board grants service connection for lumbar disc disease, which represents a complete grant of the benefits sought on appeal. As such, no discussion of VA's duty to notify or assist is necessary. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The law also provides that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish direct service connection, there must be (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 Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact- finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran seeks service connection for a lumbar spine disorder on the basis that he injured his back in service resulting in a lumbar spine disorder. He essentially claims he has had a continuity of low back symptoms since the inservice injury. Service treatment records do not show any evidence of any back injury or condition. The February 1946 separation examination report shows that the clinical evaluation of the spine was normal. The claims file contains several letters from the Veteran sent during service to his family and dated in December 1943 and January 1944, which refers to a fall from a ladder on December 17, 1943, resulting in a back injury and subsequent back pain. These letters reflect the Veteran's reports that low back symptoms were still present at the time of his letter sent on January 15, 1944. At the time he wrote that he was attempting to obtain an X-ray examination of the condition. A June 1962 certificate of an attending physician noted the Veteran's complaints of a continuity of persistent low back pain and discomfort since the Veteran's back injury in December of 1943. The physician reported current X-ray findings of narrowing at L-4, absence of a normal lordotic curve and no active pathology; and a concluding impression of old fracture of body of L-4 vertebra. An August 1962 letter from the Department of the Navy reflect that examination of the ship's deck log of the USS CLEVELAND revealed no records of any injury to the Veteran during December 1943. A November 1962 VA examination report shows that the Veteran reported that while aboard a ship in 1943 during service he slipped on some steps of the ship and injured his back. He reported that the back did not bother him later in service, but lately it was bothering him considerably. After examination, the report reflects a diagnosis of spondylolisthesis of the lumbosacral spine with marked bilateral separation of the pars interarticularis and forward displacement of L-5 and S-1. The Veteran testified at a hearing at the RO in January 1963 that he injured his back in December 1943 and reported to sick bay for a couple of hours and was then returned to duty. He testified that he received no further treatment during service and did not experience significant back problems until 1953. Private treatment records show that the Veteran fell from his bicycle in March 1967, and was seen two days later for complaints of severe pain in the lower back, radiating into the hips, abdomen and legs. A February 1977 VA examination report shows that the Veteran reported injuring his back in March 1967. After examination the report contains a diagnosis of a non-disabling back injury, rule out herniated nucleus pulposus or old fracture L4 and L5. In a September 2001 statement, Ashok Sonni, M.D., noted that the Veteran was his patient, and that the Veteran reported he injured his back during service and had fairly severe back pain after the injury for quite a few days. Dr. Sonni opined that it was conceivable that the Veteran sustained enough of an injury to cause a fracture of the spine that had resulted in the present spondylolisthesis. In a September 2001 statement, Marvin D. Maxwell, M.D., noted that the Veteran slipped on a ladder in 1943, falling hard on his buttocks. The Veteran reported having two syncopal episodes that day and persistent low back pain in the years after the incident. During a September 2010 VA examination the Veteran reported that during service he slipped on the steps of a ship and fell on his buttocks, injuring his back. He reported that he passed out and was taken to sick bay but was told that nothing was wrong with him. He reported having had low back pain since getting out of service but did not see a doctor until 1962. X-ray examination concluded with an impression of findings consistent with spondylolysis of L5 resulting in grade 2 spondylolisthesis at the L5-S1 level; multilevel degenerative changes, most severe at the L5-S1 level. After review of the claims file and examination, the examination report contains a diagnosis of spondylolysis of L5 resulting in grade 2 spondylolisthesis at the L5-S1 level; multilevel degenerative changes, most severe at the L5-S1 level. The examiner stated that without resorting to speculation he could not resolve the issue of whether the diagnosis- spondylolysis of L5 resulting in grade 2 spondylolisthesis at the L5-S1 level; multilevel degenerative changes, most severe at the L5-S1 level-was at least as likely as not related to service. In making that conclusion, the examiner relied on a review of the medical history since service as reflected in the claims file records. In addition to the examiner's initial conclusion stated above, with respect to the Veteran's report of a continuity of low back pain since the injury in service, the examiner opined that, "the low back disorder was incurred during or as a result of the military service presumptively." That opinion was based in part on the examiner's finding that the Veteran's account of the injury incident in service appeared to be competent and credible, as it was described contemporaneously by the Veteran in letters at the time. Thus, the Veteran has reported over an extended period that he has had continued problems with his low back since the in-service injury. He is competent to attest to his observations of his lumbar spine symptomatology, to include attesting as to a continuity of symptomatology after discharge. Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2). His assertions of his injury and continuity of symptoms are credible given that they are consistent with other competent evidence on file dated within a few years of the injury, and given that the account of the injury is consistent with contemporaneous letters he wrote to his family. Further, the Veteran was describing symptoms at the time-shown in contemporaneous letters-that support a later diagnosis by medical professionals. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In addition, opinions given by treating physicians tend to support his claim. Moreover, the examiner at the most recent VA examination stated that he could not provide an opinion as to etiology without speculating, however, one part of his opinion, as discussed above, was supportive of the Veteran's claim. In light of the foregoing, and resolving all reasonable doubt in his favor, the Board finds that service connection for lumbar disc disease is warranted. ORDER Service connection for lumbar disc disease is granted. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs