Citation Nr: 0812995 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 03-35 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD P. Childers, Associate Counsel INTRODUCTION The veteran had active military service from October 1978 to February 1979. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2005 and April 2006 the Board remanded the case for further development including, in April 2006, the acquisition of a compensation and pension (C&P) spine examination. The report of that examination, which was duly conducted in August 2007, is included in the claims file. The Board notes the veteran's contention that he is unable to work due to his numerous medical conditions; however, a claim for total disability based on individual unemployability (TDIU) has not been adjudicated. This issue is accordingly referred back to the RO for appropriate action. FINDINGS OF FACT 1. The veteran was treated for low back pain following a trip-and-fall accident during active military service. 2. The veteran reports that he has had continuity of symptomatology since his low back injury in service. CONCLUSION OF LAW Resolving all doubt in the veteran's favor, a low back disability was incurred during active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks service connection for a current low back disorder. He reports that he injured his back in an incident during service in which he fell over a sand barrel onto his left side. He claims to have suffered from low back pain since service. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from an injury suffered or disease contracted in the line of duty while in active military service. 38 C.F.R. §§ 3.303. Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service medical records confirm that the veteran was treated for back pain during service, and private medical records, including the reports of magnetic resonance imaging testing and x-rays, confirm that he now suffers from degenerative changes of the lumbar spine with disc bulging, diagnosed as lumbar spondylosis. However, the record also reveals that the veteran has been involved in at least four motor vehicle accidents since service; the first of which apparently in 1982. According to no less than four private treating physicians (Drs. Blaise, Brown, Broom, and Kilgus) the veteran's current low back disorder may be related to the January 1979 in- service injury to the veteran's back. Unfortunately, these physicians made no mention of the numerous motor vehicle accidents in which the veteran was involved. Conversely, the evidence also includes an "impairment rating" done in November 2001 by another private physician (Dr. Rose), who opined that the veteran's lumbar spine injury was "directly related o the motor vehicle accident of 07-02-01;" however, this physician made no mention of the January 1979 in-service incident. While an examiner can render a current diagnosis based upon his examination of the veteran, the Court has held that without a thorough review of the record, an opinion regarding the etiology of the underlying condition can be no better than the facts alleged by the veteran. Swan v. Brown, 5 Vet. App. 229, 233 (1993). In effect, it is mere speculation. See Black v. Brown, 5 Vet. App. 177, 180 (1993). In this case none of the opinions addressed the four motor vehicle accidents that the veteran had since service. Since these could also have contributed to the current back disorder, and as the opinions are couched in terms of the service injury being only a possible cause of the current disability, they are of no probative value. In April 2005 the veteran was accorded a C&P spine examination. X-rays conducted in conjunction with that examination revealed mild degenerative changes of the lumbar spine; however, the VA examiner stated that these changes were consistent with the veteran's chronological age. Upon review of the veteran's SMRs, the examiner advised that the veteran's fall from a standing height was a "low energy" mechanism, and that the ensuing injury, which the examiner identified as a back sprain, was a "fairly minor trauma." The examiner also noted that the veteran had been involved in a car accident after his military service, which the examiner explained was a "higher energy" mechanism, and therefore a more likely source, of the veteran's current back pain. Even so, the examiner was unable to unequivocally opine as to etiology. Instead, he averred that "it is likely or not difficult to establish a direct cause or relation from the fairly minor trauma sustained while in the service and his current problems with his back." He added that he could not say whether there was a 50 percent probability or greater that the veteran's "current disk problem on his back" was etiologically related to his active service. In August 2007 the veteran was accorded another C&P examination. The examiner noted that the veteran had sustained a low back injury during service, and noted that the veteran had been involved in several motor vehicle accidents which caused injury to his back after service. The examiner also mentioned that the veteran had spent several years doing heavy construction work. The examiner then opined as follows: It is difficult to ascribe an amount of his current low back condition that may be due specifically to the fall in 1979. In my opinion, there are several other factors that are equally as likely to have caused the current condition, but the fall in 1979 cannot be completely overlooked. I am unable to state that ther[e] is a 50 percent or greater probability that the current back disorder is related specifically to the 1979 incident. That would be too much speculation on my part. I believe that it is possibly related but how much I am unsure even after examining the patient. Although both C&P examinations included review of the entire claims file, neither examiner was able to opine without resorting to speculation as to a nexus between the veteran's current low back disorder and active military service. Indeed, the August 2007 examiner cautions that while the veteran's low back disorder may be attributable to several factors, the 1979 incident cannot be overlooked. In addition, it is important to note that the veteran has provided credible statements indicating that his symptoms have continued since service. He also has stated that he used over the counter remedies for years as he could not afford to seek medical care for his back. The Board thus finds the evidence to be in equipoise. Accordingly, and resolving all reasonable doubt in favor of the veteran, service connection for a low back disorder is warranted. 38 C.F.R. §§ 3.102, 3.303. VA has met the duty to notice and assist provisions of 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the veteran given the favorable nature of the Board's decision. ORDER Service connection for a low back disorder is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs