Citation Nr: 0802493 Decision Date: 01/23/08 Archive Date: 01/30/08 DOCKET NO. 06-14 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for depression, claimed as secondary to a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Vella Camilleri, Associate Counsel INTRODUCTION The veteran served on active duty from January 1975 to January 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which denied both of the veteran's claims. The veteran was afforded a personal hearing before the undersigned Veterans Law Judge in May 2007. A transcript of the hearing is of record. The veteran submitted additional evidence directly to the Board at the time of his hearing, which was accompanied by a waiver of RO consideration. The evidence will therefore be considered in this decision. 38 C.F.R. § 20.1304 (2007). FINDINGS OF FACT 1. The veteran's low back disorder is etiologically related to active service. 2. The veteran has been diagnosed with recurrent major depressive disorder, which is proximately due to or the result of a low back disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). 2. The criteria for service connection for depression as secondary to service-connected low back disorder have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants entitlement to service connection for a low back disorder and for depression, which represents a complete grant of the benefits sought on appeal. See Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Thus, there is no need to discuss whether VA has complied with its duties to notify and assist found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159 (2007). To establish service connection for a claimed disability, the evidence must demonstrate that a disease or injury resulting in current disability was incurred during active service or, if pre-existing, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2007). Similarly, any increase in severity of a nonservice- connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310 (2007). In cases of aggravation of a veteran's nonservice- connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322 (2007). The Board notes that 38 C.F.R. § 3.310, the regulation which governs claims for secondary service connection, has been amended recently. The intended effect of this amendment is to conform VA regulations to the Allen decision, supra. 71 Fed. Reg. 52, 744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). Since VA has been complying with Allen since 1995, the regulatory amendment effects no new liberalization or restriction in this appeal. The veteran contends that he has a low back disorder as a result of active service. He reports falling between 60 to 70 feet onto a large rock surface while rock climbing, but indicates that he did not complain of back pain at the time of this injury due to other, more serious injuries. The veteran also indicates that he injured his back several times after this original incident and always attributed his back problems to those other incidents. See December 2004 VA Form 21-526; May 2005 statement in support of claim; April 2006 VA Form 9; May 2007 transcript. The veteran's service medical records contain several references to problems with his low back between June 1976 and September 1976. See health records. The veteran was seen at the health clinic in Ft. Myer, Virginia, in October 1977 with pain in his right upper extremity, right leg and posterior lower ribs. This note refers to a fall and also indicates that records of hospitalization were not available. The veteran was seen again at the Ft. Myer clinic in September 1978 with complaint of middle to low back pain. At the time of his discharge from service, he reported recurrent back pain and broken bones and the examining physician noted that the veteran had fractured his ribs in 1977 and that he had had recurrent lower back pain for two days per month. Clinical evaluation of the veteran's spine, however, was normal. See August 1978 reports of medical history and examination. The post-service medical evidence of record reveals that the veteran has received treatment for his low back from various private practitioners. He reportedly injured his back in 1984 while pushing a box, at which time he was diagnosed with a disc herniation. The veteran reported the re-onset of excruciatingly severe lower back pain with radiating pain after lifting the hood of a car in November 1985 and re- injured his back in August 1987 while changing a tire. A lumbosacral CT scan in August 1987 showed left-sided disc herniation, L5-S1, with nerve root compression and posterior nerve root displacement. See September 1987 record from Brigham Orthopedic Associates. The veteran underwent a VA compensation and pension (C&P) spine examination in June 2005, at which time his claims folder was reviewed. He reported injuring his lower back after a 70 to 80 foot fall while rock climbing in 1977. The veteran indicated that he had landed on his back and lost consciousness, after which he was taken to a civilian hospital. He reported that nothing was found wrong with his back at that time, though he did have a collapsed lung and broken ribs. The veteran also related several other instances of treatment for his back while in service. He indicated that he believed his current severe back pain, which began in 2004, was related to the 1977 rock climbing incident. The veteran was diagnosed with degenerative disc disease (DDD) of the lumbosacral spine. The examiner reported that it was less likely than not that the veteran's current condition is the result of his in-service back strain. A May 2007 letter from a physician's assistant, C.M. Biller, reported that the veteran had been a patient since 2002, had a history of back surgery in 1987, and had a current diagnosis of severe DDD of the spine. The physician's assistant indicated that the veteran had reported the 1977 rock climbing injury and had also reported that three years after that incident, he started having significant back pain which continued to progress to the present. The physician's assistant asserted that it was possible that the rock climbing accident in 1977 may have been a triggering factor in his DDD, which has progressed to total disability. The Board sought a specialist's opinion regarding whether it was at least as likely as not that the veteran's current back disorder had its onset during active service or was related to any in-service disease or injury, including the 1977 fall. See October 2007 opinion request. The requested opinion was obtained in November 1977. Dr. M. Hassan indicated that the claims folder established a diagnosis of back sprain between June and August 1976 and re-injury from a rock climbing accident in 1977, with resultant collapsed lung and broken ribs. Dr. Hassan indicated that it is not uncommon that during an accident, fracture injury, breathing problems or bleeding get more attention than a non-visible injury like complaints of back pain, which follow afterward. Dr. Hassan further reported that the veteran re-injured his back on several occasions after service and finally underwent surgery in 1987. After careful and thorough review of the veteran's claims folder, Dr. Hassan reported that the veteran's current condition is at least as likely as not the result of, or caused by, recurrent back injury sustained during active duty in 1976 (during a period of physical training), the fall in 1977, and other incidents. Based on the opinion provided by Dr. Hassan, and resolving all reasonable doubt in the veteran's favor, the Board finds that service connection is warranted for a low back disorder. 38 C.F.R. §§ 3.102, 3.303 (2007). The veteran also contends that he has depression as a result of constant back pain. He indicates that he first started experiencing depression after service as a result of the severe problems he was having with his back. See May 2007 hearing transcript. The Board notes that the June 2005 rating decision that is the subject of this appeal denied the claim for entitlement to service connection for depression on both a direct and secondary basis. During his hearing, however, the veteran specifically limited this claim for service connection on a secondary basis, which is separate and distinct from a direct service connection claim. See Harder v. Brown, 5 Vet. App. 183 (1993). As such, the Board will only adjudicate the claim on a secondary basis. An October 1987 pain management evaluation was conducted by Portsmouth Regional Hospital in relation to chronic low back and radiating pain. The evaluation revealed that the veteran noted a marked decrease in socialization due to pain and problems with going to sporting events, though he continued to make contact with his family and was then living with a female friend. The examiner assessed the veteran with adjustment disorder with anxiety secondary to pain. A December 2004 letter from Dr. L. Rothschild reports that he had been treating the veteran in weekly psychotherapy since June 2004 with modest improvements, though the veteran continued to be symptomatic. In pertinent part, the veteran presented with complaints of chronic pain due to back injuries. The veteran was diagnosed with recurrent major depressive disorder. Dr. Rothschild indicated that the most recent episode occurred due to break-through back pain, as the veteran had reported diminished mood due to pain for 80 percent of each day and diminished interest in activities due to pain, fatigue and diminished concentration, both since March 2004. Dr. Rothschild also indicated that these symptoms, in conjunction with childhood trauma and resulting mild chronic depression, serve to account for his current major depressive episode. The Board acknowledges that Dr. Rothschild found the veteran's symptoms of recurrent major depressive disorder were in part due to trauma he endured during his childhood. Given the October 1987 assessment of adjustment disorder with anxiety secondary to pain, however, as well as Dr. Rothschild's statement that the most recent episode of recurrent major depressive disorder occurred due to back pain, the Board resolves reasonable doubt in the veteran's favor by finding that depression is proximately due to or the result of his now service-connected low back disorder. 38 C.F.R. §§ 3.303, 3.310 (2007). ORDER Service connection for a low back disorder is granted. Service connection for depression, as secondary to service- connected low back disorder, is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs