Citation Nr: 0811424 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 07-01 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to service connection for residuals of a lumbar strain. 2. Entitlement to service connection for herniated disks at L3-4 and L4-5, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Heather M. Gogola, Associate Counsel INTRODUCTION The veteran served on active duty from November 1982 to October 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The veteran has a lumbar strain with residuals causing discomfort in the low lumbar spine and radiating to the left buttock that is related to military service. 2. The veteran is service-connected for diabetes mellitus. 3. The veteran has a herniated disc at L3-4 and at L4-5 with residual right L4 and L5 motor radiculopathies that are related to the veteran's service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. Residuals of a lumbar strain were incurred in active service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). 2. Herniated discs at the L4-5 and at the L3-4 levels with residual L4 and L5 motor radiculopathies are secondary to the veteran's service-connected diabetes mellitus. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate form or completeness of the application. VA notified the veteran in December 2005 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and notice of what part the VA will attempt to obtain. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examination. VA informed the claimant of the need to submit all pertinent evidence in their possession, and provided adequate notice of how disability ratings and effective dates are assigned. While the appellant may not have received full notice prior to the initial decision, after notice was provided the claimant was afforded a meaningful opportunity to participate in the adjudication of the claims, and the claim was readjudicated. The claimant was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. Analysis The veteran contends that her lumbar spine disability is related to her active service. Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). The Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service- connected disease or injury." 38 C.F.R. § 3.310(a). Also, 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. See 71 Fed. Reg. 52744-52747 (Sept. 7, 2006) (to be codified at 38 C.F.R. § 3.310(b)); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Reiber v. Brown, 7 Vet. App. 513, 515-16 (1995); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service- connected disability. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen with language that requires that a baseline level of severity of the nonservice- connected disease or injury must be established by medical evidence created before the onset of aggravation. The veteran's examination and report of medical history upon enlistment, dated July 1982, noted a normal spine with no complaints of back pain. Service medical records show complaints of low back pain during service. In March 1985, the veteran reported lower back pain while she was six months pregnant. In June 1986, the veteran reported low back pain after playing in a softball game. An assessment of lumbar strain was provided. In December 1986, the veteran reported low back pain with radiating pain to the right leg. A separate December 1986 report indicated complaints of low back pain for eight months with tenderness over the lumbar spine, and a diagnosis of lumbar strain was listed under temporary problems. Post service medical records are silent as to any complaints of low back pain until April 1997. In a new patient treatment record dated April 1997, the veteran complained of intermittent back pain for many years. The veteran reported being in a motor vehicle accident in 1986 in which she was thrown from the driver's side to the passenger's side. An assessment of low back pain was provided. A treatment record dated December 1999 noted complaints of low back pain in the lumbar region for the past five days, but denied any injury or trauma. Treatment records dated October 2002 to March 2005 from T.L.H., M.D., noted complaints of low back pain with radiation to the right leg as well as obesity with weight ranging from 188 to 289 pounds. An October 2002 record indicated newly diagnosed diabetes without weight loss, and referred the veteran to a dietician to help with weight loss. A July 2003 treatment note indicated complaints of progressive right lower back pain that the veteran related to an automobile accident a number of years ago for which she sought chiropractic treatment. The doctor provided a diagnosis of degenerative disc disease, mechanical low back pain, with no evidence of a herniated disc. A June 2004 record indicated inability to lose weight despite having tried various methods. A July 2004 treatment report indicated diabetes, not well controlled but with some recent success with weight loss. An October 2003 MRI of the lumbar spine noted degenerative disc disease at L3-4, with broad based disc bulging and mild acquired canal narrowing. There appeared to be a small amount of extruded disc material to the right of the midline which is directed superiorly. There was asymmetric ill- definition of fat planes about the foraminal right L3 nerve root, raising the possibility of encroachment. There was also degenerative disc disease at L4-5 with associated disc bulging more exocentric and prominent to the right with no evidence of central canal stenosis. A November 2003 treatment report indicated complaints of back and right leg pain. The veteran reported symptoms including pain in the right paraspinal region, buttock, posterior thigh and posterior calf down to the ankle. The veteran reported that the symptoms had been present for about a year. Diagnoses of right L5 radiculopathy secondary to right sided L4-5 disc herniation and right sided L3-4 disc herniation, probably asymptomatic were provided. In November 2003, the veteran underwent a right L4-5 hemilaminotomy, medial faetectomy, foraminotomy, discectomy, and nerve root decompression with the operating microscope. Subsequent records indicated follow-up treatment after the procedure. An April 2005 treatment report indicated a history of right- sided L4-5 diskectomy in November 2003, and complaints of increased back and right leg pain. The physician also noted a history of right-sided L3-4 disk herniation with rostral migration of the disk and right L3 nerve compression, but this was not treated as the veteran did not have any symptoms in the past. A diagnosis of lumbar radiculopathy was provided. In May 2005 the veteran underwent a right L3-4 hemilaminotomy, facetectomy, foraminotomy, discectomy, and nerve root decompression with the operating microscope. Subsequent records showed follow-up treatment for the lumbar spine disability. The veteran was afforded a VA examination in May 2006. The veteran reported first having low back pain in March 1985, during her sixth month of pregnancy. Upon examination, the veteran reported pain in the lumbosacral region with shooting pain radiating down the lateral right thigh and anterior right thigh. There was also minor radiation to the left buttocks. The veteran again reported a motor vehicle accident in 1986, but the examiner noted that this was not noted in her service medical records. Physical examination revealed that the veteran had a weight of 260 pounds, described as moderately obese and in moderate distress from her back pain. The examiner, after a thorough review of the claims folder, provided a the following diagnoses; lumbar strain in the military, residual causing present discomfort in the low lumbar spine radiating to the left buttock; and a diagnosis of L4-5 and L3-4 herniated disk requiring three laparoscopic diskectomies, foraminotomies and fasciectomies, both on the right; and residual right L4 and L5 motor radiculopathies. The examiner opined that he could not state, without resorting to mere speculation, that the diagnosis of L4-5 and L3-4 herniated discs were related to service. The veteran was afforded a hearing in July 2007. During her hearing the veteran testified that she had back pain beginning in service that continued intermittently after service. She stated that she did seek treatment with a chiropractor for her back pain in the early 1990s. The veteran also testified that she gained weight due to her diabetes and that it was difficult for her to lose weight due to her diabetic condition. The Board finds that the evidence in the record supports a conclusion that it is at least as likely as not that the veteran's lumbar strain, with residuals causing current discomfort in the low lumbar spine, radiating to the left buttock is related to her active service. The service medical records note that the veteran was diagnosed with a lumbar strain during service. The May 2006 VA examiner provided a diagnosis of lumbar strain in the military with residuals causing present discomfort in the low lumbar spine radiating to the left buttock. As there is an approximate balance of positive and negative evidence regarding the merits of the veteran's claims that would give rise to a reasonable doubt in favor of the veteran, the benefit of the doubt rule is applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, service connection for residuals of a lumbar strain is warranted. Additionally, the Board finds that the evidence in the record supports a conclusion that it is at least as likely as not that the veteran's L4-5 and L3-4 herniated disks and residual right L4 and L5 radiculopathies are secondary to her service- connected diabetes mellitus. The record shows that the veteran has had an inability to lose significant amounts of weight. Treatment records from Dr. T.L.H., noted diabetes that is poorly controlled with inability to lose weight in June 2004. Additionally, while the VA examiner opined that the veteran's L4-5 and L3-4 herniations were not due to military service, he stated that the veteran's weight gain of nearly 100 pounds over the years was sufficient to account for lumbar disk herniations and the resulting radiculopathies. As there is an approximate balance of positive and negative evidence regarding the merits of the veteran's claims that would give rise to a reasonable doubt in favor of the veteran, the benefit of the doubt rule is applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, service connection for herniated discs at L3-4 and L4-5 as secondary to the veteran's service- connected diabetes mellitus is warranted. ORDER Service connection for residuals of a lumbar strain is granted. Service connection for herniated discs at L3-4 and L4-5, to include as secondary to the veteran's diabetes mellitus, is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs