Citation Nr: 0316211 Decision Date: 07/17/03 Archive Date: 07/22/03 DOCKET NO. 97-00 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Deane, Associate Counsel INTRODUCTION The veteran served on periods of active duty from November 1969 to November 1976 and from November 1981 to January 1988. This case comes to the Board of Veterans' Appeals (Board) from a rating decision rendered in May 1996 by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA) wherein the veteran was denied entitlement to service connection for residuals of a back injury. Additional evidence, in the form of an expert medical opinion, was requested by the Board in January 2003. See 38 C.F.R. § 20.901 (2002). FINDINGS OF FACT 1. All the evidence requisite for an equitable disposition of the veteran's claim has been developed and obtained, and all due process concerns as to the development of his claim have been addressed. 2. The veteran has a current back disability due to injuries sustained during his active military service. CONCLUSION OF LAW A back disability was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection is granted for a disability resulting from an injury suffered or disease contracted while in active duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2002). In addition, certain disorders, including arthritis, may be presumed to have been incurred during service when manifested to a compensable degree within a specified time (usually one- year) following separation from service. See 38 C.F.R. §§ 3.307, 3.309 (2002). In general, establishing service connection for a disability requires the existence of a current disability and a relationship or connection between that disability and a disease or injury incurred in service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2002); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). I. Entitlement to Service Connection for Back Disability The veteran contends that he currently suffers from a back disability due to injuries, which were incurred in active service, and that service connection for his disability is appropriate. After a review of the evidence, the Board finds that his contentions are supported by the record, and that his claim for service connection for a back disability is warranted. The veteran's September 1969 enlistment examination report and November 1976 separation examination report both indicated he was in normal health. Additional service medical records reflect that in January 1982 the veteran first complained of back pain after running stairs. A September 1982 treatment note listed an assessment of musculoskeletal pain and paravertebral muscle spasm after the veteran complained of back pain in his lumbar region. An additional treatment note from October 1982 listed an assessment of mechanical low back pain. In April 1983, the veteran suffered low back strain and a contusion after an accident in which his back slammed into a tree. The examiner noted mild right paravertebral muscle tenderness upon palpitation. Assessments of low back pain and mild right sciatica were noted in a May 1983 examination report. The examiner also specifically stated that the veteran was nearly asymptomatic. An examiner diagnosed the veteran with back strain in a May 1984 treatment record, noting tenderness in left lower lumbar paravertebral muscles and no radicular symptoms. An August 1985 periodic service examination report indicated that the veteran was in normal health. In a November 1987 treatment note, the veteran again complained of pain and muscle spasms in his lower back. However, the examiner noted the veteran did not have tenderness or spasms in his lumbar region. The veteran's November 1987 separation examination report again indicated that he was in normal health. Before discharge, the veteran complained of left lower back spasms in a November 1987 treatment note. The examiner stated in a December 1987 treatment note that goals were achieved, noting that the veteran's back pain was much better and that there was no tenderness in the veteran's lumbar region. Treatment records dated in July 1989 from the veteran's chiropractor, D.C. Lemon, showed that the veteran complained of constant dull aching pain in his lower back, back problems throughout his adult life, suffering a back injury during service, and having a possible herniated disc. A July 1989 radiological report listed an impression of rotational misalignments present at L3-4 and L4-5 with a possible healed fracture of L4 right transverse process. Treatment notes dated in June 1989 from the Medical Center of Central Georgia show that the veteran complained of lower back pain but denied any recent trauma. He exhibited full range of motion void of spasms or tenderness. A diagnosis of lumbosacral strain was listed in the report. A June 1989 radiological report states that the veteran has minimal hypertrophic spondylosis with well-maintained intervertebral disc spaces. An additional January 1994 examination report from the same facility listed diagnoses of exacerbation of chronic low back pain and acute lumbar strain. A radiological examination report from the same month noted that there were no significant changes in the veteran's condition since June 1989 and showed no evidence of spondylosis, with S1 joint intact. A November 1995 VA examination report indicates that the veteran claimed there were instances in Okinawa and Korea in which he injured his back in service and stated that his back problem was known when he separated from service. The veteran stated that during service in Okinawa around 1971, he fell off a truck and landed flat on his back. The veteran also stated in the examination report that he again injured his back during service in Korea after falling from a curb and striking his back against a tree. The veteran was diagnosed as having chronic low back pain with mild spondylosis, narrowed disk spaces L4 - S1 (indicative of disc disease), and degenerative arthritis (articular facet L5-S1). The examiner noted in his report that the veteran experienced discomfort in the lower lumbar region and had full range of motion of the lumbar spine. A November 1995 radiological report, which accompanied the VA examination report, listed a diagnosis of mild spondylosis of the lower lumbar spine with narrowed disc spaces at L4-S1. An expert medical opinion was requested by the Board in January 2003. See 38 C.F.R. § 20.901 (2002). An April 2003 medical advisory opinion from Dr. Roper noted that he had reviewed and thoroughly considered all evidence of record. The physician listed two diagnoses of the veteran's current low back disability in his April 2003 report. The first diagnosis was listed as low back pain, which was to include the veteran's low back pain syndrome or lumbago. The second diagnosis was listed as lumbosacral spondylosis without myelopathy, which was to encompass the veteran's lumbar osteoarthritis, lumbar facet arthropathy, and intervertebral disc narrowing. It was noted that the veteran did experience several acute back sprains or strains during service. However, the physician stated that it was "possible" but "not as least as likely as not" that the veteran's current back disability was caused by an injury during service. The physician opined that "the veteran's current back disability is most likely multifactorial, primarily due to degenerative changes of normal aging (degenerative disk disease and facet arthritis), complicated by psychosocial factors affecting his medical condition". The veteran submitted an independent medical opinion from a private physician in May 2003. It was indicated in the physician's report that he also reviewed the veteran's claims file as well as the medical evidence of record. The physician, Dr. Bash, opined that the veteran's current back disability was caused by back injuries during service. Including a passage from the April 2003 medical advisory opinion discussed above in his May 2003 opinion, Dr. Bash stated that he disagreed with Dr. Roper's statement that the veteran's degenerative processes were consistent with his age. The physician cited medical reference materials by noting that it is "well known that injuries to the spine early in life often lead to advanced degenerative changes later in life". The May 2003 opinion lists four reasons upon which the physician based his opinion that the veteran's current back disability was caused by back injuries incurred in service. First, the veteran entered service with a normal physical examination. Second, he then had multiple back problems in service, which required treatment. Third, the veteran had degenerative changes of the spine at a young age, which were described as "most consistent with old service time injuries." Finally, the physician noted that medical literature supported an association between "early in life back injuries" and degenerative arthritis. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2002). In this case, service medical records, specifically the veteran's November 1987 separation examination report, indicated that he was in normal health upon separation from service. Additional service medical records, however, show that the veteran was treated for back problems multiple times during his periods of active service. VA examination reports and medical opinions, as well as private treatment records and medical opinions, all show that the veteran has a diagnosed current back disability. In terms of whether there is evidence of a nexus between the current diagnosed back disability and injury in service, the record contains two medical opinions with opposing conclusions. Both opinions considered the medical records; they were not based on the veteran's statements alone. Both opinions provide the supporting reasoning for the opinion expressed. The Board concludes that both medical opinions are equally probative. The Board should resolve every reasonable doubt in the veteran's favor. See 38 C.F.R. § 3.102 (2002). Because the evidence concerning the question of nexus is equally balanced, with one medical opinion supporting the claim and one against the claim, the Board must resolve the doubt in favor of the veteran. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App.49 (1990). Consequently, the veteran's claim for entitlement to service connection for a back disability is granted. II. VCAA A change in the law, on November 9, 2000, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify the claimant of the information and evidence necessary to substantiate a claim for VA benefits. See Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100 et. seq. (West 2002). Implementing regulations for VCAA have been published. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Except for amendments not applicable, the provisions of the regulations merely implement the VCAA and do not provide any rights other than those provided by the VCAA. The Board has conducted a complete and thorough review of the veteran's claims folder. The Board finds that the RO advised the veteran of the evidence necessary to support his claim for entitlement to service connection for a back disability. Concerning VA's duty to assist the appellant in obtaining evidence necessary to substantiate the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), the Board notes that in Quartuccio v. Principi, 16 Vet. App. 183 (2002), the Court vacated and remanded the Board's decision for VA to obtain additional records, i.e., Social Security records. The Board also notes that the veteran referenced a claim for Social Security benefits in an August 1980 statement. The Board acknowledges that no attempts were made to ascertain whether the veteran was, in fact, receiving Social Security benefits or to obtain records from the Social Security Administration. However, as this decision of the Board is a complete grant of the benefit sought on appeal - i.e., service connection for a back disability - the Board concludes that sufficient evidence to decide the claim has been obtained and that any defect in the notice and development requirements of the VCAA that may exist in this instance would not be prejudicial to the veteran. ORDER Service connection for a back disability is granted. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.