Citation Nr: 0811710 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 07-02 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for chronic lumbar spine degenerative disc disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The veteran had active service from April 1944 to May 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) which denied service connection for lumbar spine degenerative disc disease. In March 2008, the veteran was afforded a hearing before the undersigned Acting Veterans Law Judge sitting at the RO. At the hearing, a Motion to Advance on the Docket was advanced. In March 2008, the Board granted the motion. FINDING OF FACT There is an approximate balance of positive and negative evidence as to whether the veteran's chronic lumbar spine degenerative disc disease originated during wartime service. CONCLUSION OF LAW Resolving doubt in favor of the veteran, chronic lumbar spine degenerative disc disease was incurred during wartime service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. In reviewing the veteran's claim for service connection, the Board observes that the RO issued VCAA notices to the veteran in September 2004, October 2004, November 2004, December 2004, October 2005, March 2006, and August 2006 which informed the veteran of the evidence generally needed to support a claim for service connection and the assignment of an evaluation and effective date of an initial award of service connection; what actions he needed to undertake; and how the VA would assist him in developing his claim. Such notice effectively informed him of the need to submit any relevant evidence in his possession. The September 2004, October 2004, November 2004, and December 2004 VCAA notices were issued prior to the March 2005 rating decision from which the instant appeal arises. The VA has attempted to secure all relevant documentation. The veteran was afforded a VA examination for compensation purposes. The examination report is of record. The veteran was afforded a hearing before the undersigned Acting Veterans Law Judge sitting at the RO. The hearing transcript is of record. There remains no issue as to the substantial completeness of the veteran's claim. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2007). Any duty imposed on the VA, including the duty to assist and to provide notification, has been met. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); petition for cert. filed, __ U.S.L.W.__ (U.S. Mar. 21, 2008) (No. 07A588). II. Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 2002). 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) (2007). The veteran's service medical records indicate that he was treated for low back trauma. An April 1945 treatment record states that a piece of iron fell 15 feet and struck the veteran over the glutenal area. The veteran was noted to exhibit "spasm and induration" of the deep tissues. A diagnosis of a "contusion (lower back) was advanced. At his May 1946 physical examination for service separation, the veteran's 1945 back injury was noted. The examiner reported that the veteran's spine was "normal." In his August 2004 Veteran's Application for Compensation or Pension (VA Form 21-526), the veteran advanced that he sustained a chronic back disorder during active service. He clarified that he received ongoing chiropractic treatment for his back since service separation. A September 2005 written statement from Paul C. MacKenzie, D.C., conveys that the veteran had been treated for "long-standing" low back pain since July 1988. The veteran was noted to exhibit findings consistent with lumbar spine degenerative disc disease and degenerative joint disease. The doctor opined that: Conditions of this degree are of long standing. It is my understanding that [the veteran] experienced a back injury while serving in the United States Navy in 1945. It is entirely possible, based on the level of degeneration seen in the 1996 X-rays, that [the veteran's] current condition is related to injuries incurred at that time. At a November 2005 VA examination for compensation purposes, the veteran was diagnosed with lumbosacral spine degenerative disc disease. The examiner commented that: In the opinion of the examiner, it would be less likely than not that the veteran's current day degenerative disk disease had its origin secondary to contusion of the back in 1945 in the service. In a November 2006 addendum to the November 2005 examination report, the examiner clarified that: In clarification of the opinion rendered that this veteran's contusion of the back in 1945 in service is less likely than not to be causally related to his current day degenerative disc disease, the rationale for this would be that it is unlikely that a contusion of the back, which is most likely self-limited, would lead to such an advanced condition of the low back. The Board has reviewed the probative evidence of record including the veteran's testimony and written statements on appeal. Initially, the Board observes that the RO apparently gave less weight to Dr. Mackenzie's opinion due to the fact that he is a chiropractor. While both the RO and the Board can take into account expertise and qualifications when weighing the probative value of medical opinions, the Court has held that chiropractors are medical professionals and therefore competent to provide medical nexus evidence. Pond v. West, 12 Vet. App. 341, 345 (1999). In this instance, while the VA examiner determined that the veteran's lumbar spine degenerative disc disease was not related to his inservice low back trauma and/or active service, Dr. Mackenzie, the veteran's long-time treating chiropractor, concluded that the disability was consistent with his inservice low back trauma. Neither examiner appeared to provide more extensive or persuasive rationale than the other. Given these facts, and because there is no reason to doubt the veteran's assertions as to a continuity of symptomatology since service, the Board concludes that the evidence is in relative equipoise as to the issue of the veteran's entitlement to service connection for chronic lumbar spine degenerative disc disease. In resolving all reasonable doubt in the veteran's favor, the Board finds that service connection is now warranted for chronic lumbar spine degenerative disc disease. ORDER Service connection for lumbosacral degenerative disc disease is granted ____________________________________________ MICHAEL LANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs