Citation Nr: 1010804 Decision Date: 03/22/10 Archive Date: 03/31/10 DOCKET NO. 07-16 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Service connection for residuals of a low back injury. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran had active service from April 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in May 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In September 2009, the Board remanded this matter for additional development. FINDING OF FACT The evidence of record does not preponderate against the Veteran's claim that his service relates to his current lower back disorder. CONCLUSION OF LAW The Veteran's lower back disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 At the outset, the Board notes that while the VA may not be in complete compliance with every aspect of the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002) (VCAA) with respect to the Veteran's claim, the Board has determined that the evidence supports a grant of the benefits sought. Consequently, any lack of notice and/or development under the VCAA cannot be considered prejudicial to the Veteran, and remand for such notice and/development would be an inefficient use of VA time and resources. II. The Merits to the Claim for Service Connection The Veteran claims that he incurred a lower back disorder while serving in the Republic of Vietnam during the Vietnam Conflict. In the May 2006 rating decision on appeal, the RO denied the Veteran's claim. For the reasons set forth below, the Board disagrees with that decision. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. § 1110 (2002); 38 C.F.R. § 3.303(a) (2009). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154 (2002); 38 C.F.R. § 3.303(a) (2009). Generally, to establish service connection for a disability, a claimant must submit the following: First, medical evidence of a current disability. Second, medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. And third, 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). In this matter, service connection is warranted because the evidence shows that the Veteran has a current lower back disorder, shows that he experienced a lower back disorder during service, and shows that service relates to the current lower back disorder. VA compensation examination reports of record dated in April 2007 and January 2010 note diagnoses of degenerative arthritis of the lumbosacral spine involving nerve root compression at L5-S1 and consequent radiculopathy and sciatic pain into the left buttock. Service treatment records indicate that the Veteran injured his lower back in a helicopter crash in November 1968. And, based on the Veteran's statements, and the findings of the January 2010 VA examiner, the record does not preponderate against the Veteran's claim that the current disorder and service are related. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (to deny a claim on its merits, the evidence must preponderate against the claim). First, in lay statements in the record, the Veteran indicates that since his in-service lower back injury, he has experienced symptoms consistent with his current lower back disorder. In a February 2006 statement of record, the Veteran indicates that he has experienced a continuity of symptomatology since service due to periodic flare ups "over the years." See 38 C.F.R. § 3.303(b). The Board notes that a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). But lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Indeed, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this matter, the Board recognizes the Veteran's competence to attest to such a symptom as back pain. Such a symptom is "observable" and not medical in nature. As such, the Veteran's statements support his claim that service connection is warranted in this matter based on a continuity of symptomatology since the in-service helicopter crash in which he was injured. See 38 C.F.R. § 3.303(b). Second, medical evidence of record does not preponderate against the Veteran's claim to service incurrence of his lower back disorder. The January 2010 VA examiner corroborated the Veteran's claims. After indicating review of the claims file and personal examination of the Veteran, the examiner stated that it was as likely as not that the Veteran's lower back disorder related to "the helicopter crash that he was involved in while in Vietnam." The Board notes that the April 2007 VA examiner found that the Veteran's lower back disorder was likely unrelated to service. However, the Board finds this opinion to be of limited probative value on the issue of medical nexus. See Evans v. West, 12 Vet. App. 22, 30 (1998) (the Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim). Although this examiner indicated review of the claims file, his nexus opinion is based on an incorrect premise. In short, this examiner opined that service and current disorder were unrelated because "[t]here has been more than 30 years without complaints of pain nor medical treatments" for the lower back disorder. See Bloom v. West, 12 Vet. App. 185, 187 (1999). As indicated, the record demonstrates the opposite - the Veteran states clearly that he has experienced symptoms of his disorder over the years since service. See Layno, supra. In sum, the Board finds service connection warranted here based on the Veteran's own statements, and those statements noted in the January 2010 VA examination report. Each supports the Veteran's claim that he has experienced a continuity of symptomatology since service, and that his current lower back disorder is related to his in-service lower back injury. The negative finding by the April 2007 examiner does not preponderate against this supportive evidence. See Alemany, supra. (CONTINUED ON NEXT PAGE) ORDER Service connection for degenerative disc disease and intervertebral disc syndrome, of the lumbosacral spine, is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs