Citation Nr: 0810640 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-18 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The veteran served on active duty from May 1960 to February 1964. This case comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified at a videoconference hearing at the RO before a Member of the Board in March 2008. Service connection for a back disorder was denied in March 1994 without appeal by the veteran. In April 2001, he submitted an application to reopen his claim, which was granted by the RO in the May 2002 decision that ultimately denied service connection and which the veteran appealed. The Board likewise finds the claim reopened, and no prejudice to the veteran by de novo review. Bernard v. Brown, 4 Vet. App. 384 (1993). FINDING OF FACT A low back disorder was evident during service and is at least as likely as not related to currently demonstrated degenerative disc disease of the lumbar spine. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, degenerative disc disease of the lumbar spine was incurred in service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board must first address the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. § 5100 et seq. (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The law addresses the notification and assistance requirements of VA in the context of claims for benefits. In this regard, the Court has held that a notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the Court held that a notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must accomplish the following: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Id. In a VCAA letter dated in July 2001, the RO notified the appellant of the information and evidence necessary to substantiate the claim, the information and evidence that VA would seek to provide, and the information and evidence the appellant was expected to provide. In addition, the RO asked the appellant to submit any evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2003); Quartuccio v. Principi, 16 Vet. App. 183 (2002). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In May 2006 the veteran was provided with the necessary notifications. Finally, all appropriate development has been undertaken. There is no showing that there are additional records or other evidence that should or could be obtained prior to entry of a decision at this time, especially in view of the holding herein. In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The veteran is seeking service connection for his low back disorder, which as been diagnosed as degenerative disc disease of L4-L5, status post interbody fusion and cage operation with residuals pain, stiffness, and lumbar radiculopathy. The Board has reviewed the veteran's claims folder, including the service treatment records, private records of medical treatment subsequent to service and the findings of two VA examinations. After review of the record, and for the reasons that will be given, it is determined that the evidence is in equipoise. As such, with resolution of reasonable doubt in the appellant's favor, service connection for the veteran's low back disorder is granted. In correspondence and testimony given before the undersigned, the veteran stated that his low back was injured when he fell from a B-52 bomber on which he was working. He stated that he was hospitalized for over 20 days and that he continued to receive treatment throughout his period of service. Review of the service treatment records shows that he was treated for back disabilities beginning in January 1963. The diagnosis in service was myositis. At the time of examination for separation from service the veteran stated that he continued to have recurrent back pain. The service treatment records do not include a report of the cause of the veteran's back pain, but only that the veteran had noticed back pain for a month prior to his initial treatment in January 1963. It is clear from the record that there was no evidence of back pain prior to that date in service. Beginning in 1993, private treatment records document a low back disorder, diagnosed on MRI study as degenerative changes of the lumbar discs, primarily at L4-5 and L5-S1. In 1993, the veteran gave a history of back pain since 1963. There is a record recording complaints of leg pain in 1971 after work. No specific diagnosis is entered at that time. There is evidence on file that attempts to obtain medical and chiropractic evidence in the 1960's and 1970's was unsuccessful as records were not kept for long periods or the doctors had died or retired. In 1999, the veteran underwent a lumbar laminectomy and interbody fusion. At the time he was being evaluated for this procedure, he reported that the onset of his back pain had been in 1963 after he had suffered a fall. In a May 2002 affidavit, a fellow serviceman stated that he recalled that in 1963 the veteran had fallen off a B-52 while performing maintenance work. He went on to state that the veteran had spent his 21st birthday in the hospital as a result of this fall and that he seemed to have periodic problems with his back from that time. An additional statement from the veteran's son, to the effect that he recalls his father always having problems with his low back was also received. Two interpretations of a VA compensation examination have been entered in an attempt to ascertain whether the veteran's complaints of low back pain are related to the current symptoms of degenerative disease of the lumbar spine. In April 2002, the examiner accepted the veteran's history of a fall during service, reviewed the treatment records including the service medical records, and rendered an opinion that it was as likely as not that the current back condition was the result of the incident described by the veteran as having occurred during service. The second opinion, without examination, rendered in August 2005 noted that the veteran's service treatment records did not document a fall as described by the veteran and that there was no record of the veteran having been treated for a low back disability from his discharge from service until 1991. For this reason, the examiner rendered an opinion that it was not as likely as not that the veteran's current back problems were related to the inservice diagnosis of myositis. The examiner stated that, if there were further documentation of a traumatic origin of the back time at the time that he was in service, or documentation of treatment for problems with his low back between the time he left service and 1991, the case should be further reviewed. Review of the two VA medical opinions shows that the veteran's current low back pathology may be related to service, if there is documentation of the incident described by the veteran at his hearing in March 2008. After review of the entire record, the Board is of the opinion that there is sufficient supporting evidence to accept the veteran's versions of the events-with supporting lay statements--and, thus, establish service connection. In addition to the veteran's sworn testimony, there is the fact that the veteran related a description of the events in 1999, prior to his application to reopen claim his claim in 2001, and the affidavit from the fellow serviceman attesting to the fact that the veteran did, in fact, sustain such an injury. In light of this, the Board finds sufficient verification of the veteran's fall, despite the fact that the service treatment records do not record a history of the incident. As such, the evidence is deemed to be in equipoise and the benefit of the doubt doctrine is applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection is therefore, granted. ORDER Service connection for degenerative disc disease of the lumbar spine is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs