Citation Nr: 0836768 Decision Date: 10/24/08 Archive Date: 10/31/08 DOCKET NO. 02-04 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Attorney: Sean Kendall ATTORNEY FOR THE BOARD S. Heneks, Associate Counsel INTRODUCTION The veteran served on active duty from January to December 1980. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied the benefit sought on appeal. In a January 2003 decision, the Board denied the claim. Subsequently, the veteran appealed the Board's decision to the Court and in an Order dated in February 2004, the Court ordered that the Joint Motion for Remand (Joint Motion) be granted and remanded the Board's decision for proceedings consistent with the Joint Motion filed in this case. In October 2004, the Board issued a second denial of the veteran's claim, which he again appealed to the Court. In an Order dated in March 2007, the Court vacated the October 2004 Board decision and remanded the claim for compliance with the initial Joint Motion. In a December 2007 decision, the Board found new and material evidence sufficient to reopen the claim and remanded the claim on the merits for further development. Because the Board is granting the claim on appeal, a discussion of compliance with the remand instructions is not necessary as no prejudice will result to the veteran. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. A low back disability had its onset during active military service. CONCLUSION OF LAW A low back disability was incurred in active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran and his representative contend that the veteran's low back disability began during service. Because the claim of service connection for a low back disability on appeal is being granted, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). LAW AND ANALYSIS Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In sum, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). In considering all of the evidence of record under the laws and regulations as set forth above, and after resolving all reasonable doubt in favor of the veteran, the Board concludes that the veteran is entitled to service connection for a low back disability. The veteran contends that during boot camp, he was hit by other soldiers with pillows which caused him to fall down stairs and hyperextend his back. During an August 1996 hearing before a hearing officer, the veteran testified that he continued to have back pain including an incident where his back was too sore to dig a foxhole. He went to his Second Lieutenant who threatened him with an Article 15 if he did not finish basic training, so he finished basic training and his back got a little better. The veteran continued that he was sent to Korea for ten months and reinjured his back after doing a Tai Kwando exercise. The veteran's DD 214 Form reflects that the veteran was separated shortly after this alleged event. He testified that he has continued to have back pain since service. The veteran's service treatment records document that in January 1980, the veteran complained of back pain for five days after falling on steps and twisting his back during the first week of boot camp. The impression was lumbar strain. However, there is no documentation in the veteran's service treatment records of continued lower back pain or additional injuries following the January 1980 report. Unfortunately, the veteran elected not to have a separation examination in December 1980. The post-service medical evidence reflected that the first complaint of back pain was in 1982. In this regard, the Board finds it significant that in November 1982, private treatment records from the Z.C. indicate that the veteran had back pain for two years since he twisted his back while in the military. He was told to do back exercises. The next finding of lumbosacral pain was in a July 1992 VA treatment record. An x-ray of the veteran's back was negative. A June 1995 VA treatment record reflected that after lifting logs, the veteran reported feeling a snap in his back and had lower back pain radiating to his medial left leg. The assessment was lower back pain, muscle spasms versus herniated nucleus pulposus. In February 1996, the veteran underwent a VA spine examination. However, at the time of the examination, the examiner did not have the benefit of the 1982 private records from Z.C. or the VA records dated in the early 1990s showing lumbosacral pain. Therefore, this VA examination was based on an incomplete account of the veteran's post-service low back symptomatology. After the aforementioned records were associated with the claims file, the veteran underwent another VA examination in December 1996. Additionally, the record contains a September 2007 private opinion that is favorable to the veteran and another unfavorable VA examination dated in March 2008. As discussed above, the law is clear that it is the Board's duty to assess the credibility and probative value of evidence, and provided that it offers an adequate statement of reasons and bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The Board, of course, is not free to reject medical evidence on the basis of its own unsubstantiated medical conclusions. Flash v. Brown, 8 Vet. App. 332 (1995). The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Beginning with the December 1996 examination, the examiner referenced the February 1996 VA examination which revealed normal neurological and range of motion findings and negative x-rays and straight leg raising. He concluded that the veteran's back complaints were not related to any type of injury he received in military service as there was no clear indication of any objective abnormality as far as the veteran's examination was concerned. After the December 1996 VA examination, a January 1997 VA treatment entry indicated that the veteran continued to have recurrent back pain. A May 1998 VA treatment entry indicated that the veteran had lower back pain for three days after taking a one hundred pound ladder off a truck. The diagnosis was back strain. An April 1999 CT scan of the lumbar spine showed multi-level degenerative disc changes including diffuse disc bulging and an associated small left side herniated disc at L3-4 and mild diffuse disc bulging at L4-5. In May 2003, the veteran underwent a L3-L4-S1 laminectomy with fusion. In September 2007, Dr. C.N.B., who indicated that he had special knowledge in the area of spinal disease, provided a favorable opinion for the veteran. After reviewing the pertinent medical records, Dr. C.N.B. opined that the veteran's advanced for age lumbar spine degenerative disc disease, subsequent surgeries, and associated rapidly advancing spinal/forminal stenosis were all caused by his in- service back injuries. In this regard, the examiner acknowledged that this case was complex because it involved a spinal injury that occurred during a short period of service, there was no separation examination, and there were no abnormalities on the lumbar spine x-rays 19 years following the service injuries. However, Dr. C.N.B. commented that the veteran's history, lay statements, and medical records were all consistent with the pathophysiology which states that the spine injuries early in life precipitate or accelerate the onset of the degenerative processes to the spine due to the resultant chronic ligament laxity/spine instability. He referenced a medical source to support his conclusion. Further, the doctor reasoned that the veteran had multiple back injuries in-service per his lay statements and service treatment records. He commented that the April 1999 CT scan findings were not normal for a person of his age and were therefore likely due to prior in-service spine injuries as there was no more likely medical cause. Dr. C.N.B. acknowledged that the veteran had a laborious occupation following service but concluded that his service time injuries likely predisposed him to accelerated degenerative changes due to any occupational stress. Dr. C.N.B. further opined that due to the seriousness of his service back injury, the veteran would still have had abnormal imagining in 1999 even if he had a sedentary job. In analyzing Dr. C.N.B.'s opinion, the Board notes that it hinges on the seriousness of the veteran's in-service back injuries and lack of evidence supporting a more likely cause for his current back disability. As discussed above, the only documented in-service back injury was the fall down the stairs. Despite the lack of in-service documentation of further back injuries or continued complaints of back pain during service, the veteran is competent to report that he experienced back pain throughout service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). However, the Board must determine if the veteran's contentions that he had additional back injuries and continued back pain since service are persuasive. Pursuant to Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir., 2006), the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Further, although there are no reports of further back injuries or back pain during service, the Board finds it significant that the veteran did report back pain since a twisting injury in 1982, only two years after his separation from service. Moreover, the veteran described the nature of his initial in-service injury in 1982 the same way it was recorded in 1980. As such, because the veteran gave a consistent account of the nature of his in-service injury and indicated that he had continued back pain shortly after service, the Board finds that the veteran's testimony that he had continued back pain and further back injuries during service to be persuasive. Thus, after determining that Dr. C.N.B.'s premise that the veteran had a serious in-service back injury is supported by the evidence of record, the Board affords it great probative weight as it is based on a thorough review of the pertinent medical evidence and is supported by rationale and medical literature. Although he did not reference the records pertaining to on the job post-service back injuries, the Board finds it significant that Dr. C.N.B. accounted for the impact of the veteran's post-service occupation when reaching his conclusions. Moreover, Dr. C.N.B. also questioned the December 1996 VA examiner's opinion. In particular, he noted that marked abnormal CT scan in April 1999 indicated that the degenerative changes were likely present in 1996 and therefore the x-rays taken at that time were likely misread as the level of abnormality shown in 1999 could not have developed in a 26 month time period. In sum, the Board affords Dr. C.N.B. great probative weight. In contrast, in March 2008, a VA examiner concluded that it was less likely than not that the one-time injury in service directly caused or permanently aggravated the diffuse degenerative disc disease or disc herniation which resulted in the need for lumbar fusion. After commenting on the evidence within the veteran's claims file, the examiner noted that the veteran did sustain an injury to his low back during service and likely had intermittent complaints of once or twice a year symptoms of lumbar strain after getting out of service. Therefore, it was as likely as not that the onset of the lumbar strain occurred during service. However, the examiner concluded that based on the veteran's history and available medical records, degenerative disc disease likely occurred in the 1990s. In particular, the examiner noted that in June 1995 there was a documented injury to the back and the increased symptomatology began about this time. However, the VA examiner did conclude that the onset of the veteran's lumbar strain was during service. Although he indicated that the post-service back injury in June 1995 where the veteran felt a snap in his back was likely an intervening event that led to the veteran's degenerative disc disease instead of the one-time injury during service, the examiner did not comment on the impact the lumbar strain had on the development of degenerative disc disease, if any, like Dr. C.N.B. did. Importantly, the examiner based his conclusion on the one documented in-service report of lumbar strain although the Board has concluded that the veteran's account of further in-service back exacerbations was persuasive. As such, the Board affords the opinion of Dr. C.N.B. greater probative weight as provides a persuasive and supported rationale for these factors. In conclusion, the veteran has been shown to have a low back pain since service. Further, the more persuasive medical evidence of record indicated that the veteran's current low back disability was associated with an in-service back injury. Additionally, the evidence of record supports this conclusion. Based on the foregoing, the Board concludes that after resolving all reasonable doubt in favor of the veteran, a low back disability is etiologically related to his service. As such, service connection for a low back disability must be granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. ORDER Entitlement to service connection for a low back disability is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs