Citation Nr: 1031280 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 05-38 422 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for degenerative disc disease, lumbar spine, residuals of fractured L4. 2. Entitlement to service connection for a claimed headache disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD A. Nigam, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1990 to November 1990 and from April 2002 to April 2003. He also had service with the Army Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2004 RO rating decision. During the course of his appeal, the Veteran was afforded a Travel Board hearing before the undersigned Veterans Law Judge in March 2007. These matters were recently before the Board in March 2008 and in April 2009, when the case was remanded to the RO (via the Appeals Management Center (AMC), in Washington, D.C.). The purpose of these remands was to obtain outstanding treatment records and to schedule him for VA examinations. With respect to the claim for service connection for a spine disorder, all of the actions previously sought by the Board through its prior development request appear to have been substantially completed as directed, and it is of note that the Veteran does not contend otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998); D'Aries v. Peake, 22 Vet. App. 97, 104- 05 (2008); Dyment v. West, 13 Vet. App. 141 (1999). Upon completion of the requested development, a Supplemental Statement of the Case (SSOC), dated in February 2010 and issued in March 2010, confirmed and continued the previous denial. The issue of service connection for a claimed headache disorder is being remanded to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue addressed in this decision was obtained. 2. The degenerative disc disease, lumbar spine, residuals of fractured L4 clearly and unmistakably existed prior to the Veteran's second period of active service. 3. The Veteran's preexisting degenerative disc disease, lumbar spine, residuals of fractured L4 is shown as likely as not to have increased in severity beyond normal progression during his second period of active service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by degenerative disc disease, lumbar spine, residuals of fractured L4 is due to disease or injury that was aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (2000) The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). In view of the Board's favorable disposition of the claim on appeal, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). To establish a service connection for an injury, a veteran is required to show (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). In cases where the veteran cannot establish some of these elements, a veteran can instead establish continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology, the a veteran is required to show "(1) that a condition was 'noted' during service, (2) evidence of postservice continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 U.S.C.A. §§ 1111, 1137 (West 2002). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306 (2009). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Importantly, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306; see also 38 U.S.C.A. § 1153 (West 2002). 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, 53 (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. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128- 30 (2000). Analysis The Veteran contends that while on his way to weekend drill training while in the Army Reserve he was involved in a motor vehicle accident in 1997, which caused a back disorder that was subsequently aggravated during various active periods of military service. In particular, the Veteran claims that lifting boxes and climbing in and out of trucks while working as a truck driver and fork lift operator in service caused his underlying back disorder to worsen. This assertion is supported by oral testimony provided by the Veteran, his spouse, and his representative in his March 2007 Travel Board hearing and by various written statements, which corroborate his reported symptomatology. After carefully reviewing the entire record, the Board finds the evidence to be in relative equipoise in showing that the Veteran suffers from preexisting degenerative disc disease, lumbar spine, residuals of fractured L4 that as likely as not increased in severity during his second period of active service. The Board concedes that the Veteran did experience a motor vehicle accident in November 1997, which occurred off base and off duty. The Board finds that a presumption of soundness does not apply in this case. Various private and in-service treatment records, including findings of a Physical Evaluation Board, beginning in 1998, and dated throughout the various periods of the Veteran's active and inactive duty service, clearly show the existence of multi-level degenerative disc disease due to a pre-service motor vehicle accident. Although this was not noted at service entry during the Veteran's second tour of active duty, the evidence clearly and unmistakably establishes the existence of this disability prior to service. With regard to whether the preexisting disability was aggravated during service, the medical evidence shows that it was. In this regard, VA and private treatment records, dated from 1998, generally indicate findings of chronic low back pain, and degenerative joint disease of the lumbar spine with pain radiating to the ankles. Specifically, a March 1998 report of an MRI scan of the lumbar spine showed abnormal signal intensity involving the L3 to L4 interspace level consistent with early disc degeneration or dehydration, with reversal of the normal lordotic curve of the lumbar spine that might be related to muscle spasm. The radiologist observed that the spinal canal and its contents appeared to be normal, no disc herniation was identified in the study, and the surrounding soft tissues were unremarkable. The radiologist indicated an impression of evidence of decreased signal intensity at the L3 to L4 interspace level consistent with early disc degeneration or dehydration, and no disc herniation or spinal stenosis identified. Moreover, an October 1998 private CT scan with contrast report of the lumbar spine revealed mild effacement of the thecal sac at L3 to L4 and L4 to L5 levels, possible mild disc bulge and/or protrusion centrally without gross neurologic compression, and probable compression fracture of the L4 vertebral body. In the October 1998 report, the radiologist noted multiple axial images were obtained throughout the lumbar spine from L3 to S1, with the L3 vertebral body seen as unremarkable, and the L3 to L4 disc showing minimal bulge circumferentially. The radiologist noted no significant displacement or compression of the neural structures or the spinal canal, although there was some degree of osteophyte formation seen anteriorly on the superior border of the L4 vertebral body, with some stenosis seen in the vertebral body. The L4 to L5 disc revealed some bulge with some posterior effacement of the fat along the thecal sac. The radiologist noted that no gross evidence of neurologic compression of the neuroforamina was visible, and the L5 to S1 disc showed no significant bulge or protrusion. The radiologist indicated that the spinal canal and nerve roots were well- maintained with no evidence of compression or displacement. The radiologist noted that sagittal images obtained through the center of the spinal canal as well as the vertebral bodies demonstrated that the neuroforamina were well-maintained and the neural canal showed no compression. However, sagittal images obtained throughout the vertebral bodies suggested a compression fracture of the L4 vertebral body with significant loss of height throughout the vertebral body with probably fracture line present. Additionally, the radiologist noted that though it was less obvious diagnostically, the possibility of vertical fracture seen at the L5 vertebral body could not be excluded, and there was a mild subligamentous bulge at the L3 to L4 as well as L4 to L5 level seen, without disc protrusion or herniation. An October 1998 private neurological surgery prescription note indicated that the Veteran was not to run more than a quarter of a mile at a time due to his back problem. The service treatment records, dated in August 2002 and September 2002, indicate complaints of lower back pain radiating down the back since April 2002, and show an MRI lumbosacral spine study revealed moderate degenerative disc disease of the L2 to L3, L3 to L4 and L4 to L5 areas that may require surgery in the future. Significantly, an August 2002 Medical Evaluation Board Narrative Summary, reveals a chief complaint of low back pain, and treatment for chronic low back pain that began approximately 2 weeks after being involved in a motor vehicle accident in November 1997. The Evaluation Board noted that the Veteran was not on active duty status at the time of his accident. The Veteran indicated that his severe low back pain has been similar in quality and intensity over the past 5 years. The Evaluation Board noted that there was no indication in the record for evaluation of the back pain until the Veteran arrived at Fort Lewis on active duty orders in April 2002. The Veteran was diagnosed with chronic low back pain secondary to multilevel lumbar spine degenerative joint disease. The Evaluation Board opined that the Veteran's chronic low back pain would not likely improve while performing typical active duty assignments, and that the Veteran would not tolerate normal standard deployments, and concluded that, based on the Veteran's complaint of chronic low back pain, he did not meet the retention criteria. The Evaluation Board recommended that the Veteran be separated from service, or in lieu of that, be placed on a P3 profile limiting his ability to run, jump, use a rucksack, perform sit- ups, flutter kicks, wear Kevlar, or ride in an all-terrain vehicle. Further, the Evaluation Board recommended that, regarding the clinical disposition, the Veteran be advised to limit heavy lifting, running, or activities, which would exacerbate his chronic low back pain. The service treatment records, dated from August 2002 to December 2002, reveal findings of degenerative disc disease, low back pain secondary to the 1997 motor vehicle accident, chronic low back pain with past medical history of disc injury to L4 to L5 level, and a physical profile indicating no running, jumping, rucksack marching, sit-ups, flutter kicking, Kevlar vest, or riding in off road vehicles. A Physical Evaluation Board Proceeding, dated in March 2003, reflects a determination that the Veteran be separated from service without disability benefits based on a finding that he suffered from chronic low back pain secondary to multi-level degenerative disc disease symptoms dating to a motor vehicle accident in 1997 while in civilian status, not due to his own misconduct, with no evidence of permanent service aggravation. The Physical Evaluation Board found that the Veteran's functional limitations in maintaining the appropriate level of mobility caused by the physical impairment of the spine made him medically unfit to perform the duties required of a soldier of his rank and primary specialty. The Physical Evaluation Board noted that the Veteran's unfit condition was found to be neither service incurred nor permanently aggravated by military service, and his impairment originated while not entitled to basic pay and increased only to the extent of its accepted normal and natural progress. The Physical Evaluation Board concluded that there was no permanent service aggravation, and that since the condition was not service incurred or permanently aggravated, the Veteran was ineligible for disability compensation and therefore was separated without disability benefits. In conjunction with this appeal, the Veteran underwent a VA examination in August 2003. Here, the Veteran provided a medical history of injuring his back in a motor vehicle accident in 1997. The Veteran complained of severe back pain that continued for a week following the accident, with pain from the hips down, that eventually resolved. The Veteran described residual low back pain and left hip pain. Approximately 6 months later, the Veteran underwent an MRI scan due to continued pain, at which time he was diagnosed with degenerative disc disease and stenosis. The Veteran claims to have been treated for his condition with medication and physical therapy. The Veteran quantified his back pain at a 9 out of 10 when he awakens, and noted that it takes him approximately one-half hour to 45 minutes to limber up. The Veteran indicated that he takes Naprosyn and Motrin, which, along with hot showers, some stretching, and occasionally wearing a brace, have been effective in bringing his pain down to a 3.5 or 4 out of 10. On examination of the lumbar spine, the examiner observed findings of slight pain on palpation of the spine at the belt line, trouble getting up out of a chair, a slight limp on the left, slightly unsteady tandem walking, and negative Romberg. Range of motion testing revealed forward flexion to 70 degrees, with pain at 45 degrees, extension to 10 degrees, lateral flexion on the left to 20 degrees, lateral flexion on the right to 35 degrees, and rotation to 30 degrees bilaterally. Axial loading created cervical neck pain, and McBride test was positive on the left for low back pain or a pulling sensation; however, passive rotation of the hips was pain free, and McBride test was negative on the right for low back pain or a pulling sensation. Diagnostic testing in the form of an MRI scan performed in August 2002, revealed multilevel discogenic disease consisting of broad- based disc bulges at L2 to L3 through L5 to S1, with superimposed central extrusion with L2 to L3 and a left paracentral protrusion at L4 to L5, along with moderate to severe central canal stenosis at L2 to L3 and mild bilateral neural foraminal stenosis at L4 to L5, and multilevel degenerative disc desiccation and loss of disc height. The Veteran was diagnosed with low back pain, and multilevel discogenic disease with moderate to severe central canal stenosis and degenerative disc disease, with loss of disc height. In June 2006, the Veteran underwent a VA CT scan of the lumbar spine without contrast. Here, the radiologist diagnosed the Veteran with diminished stature of the L4 vertebral body, multilevel degenerative disease and spondyloarthritis, with a maximum degree of canal stenosis moderate at the L2 to l3 level, significant bilateral neuroforaminal stenosis at the L4 to L5 level with evidence of bilateral nerve root impingement, and annular disc bulge at the L5 to S1 level that contacts the left S1 nerve root sleeve. A June 2006 VA lumbar spine series reflects findings of minimal degenerative changes present, but no fractures or other bony abnormalities. Private diagnostic imaging reports, dated in July 2008, show impressions of chronic anterior wedge compression deformities at L1, L2, and L4 vertebral bodies, somewhat unusual for the Veteran's age, mild marginal endplate spondylosis, apparent Scheuermann's disease, super-imposed disc bulge and protrusion with accompanying foraminal stenosis, no high grade central canal stenosis, and moderate central canal stenosis at the L2 to L3 level. A December 2008 VA examination report reflects a reported history of a motor vehicle accident in November 1997 on way to a drill weekend with the 351st Ordinance in Uniontown. The Veteran indicated that he initially felt that he pulled a muscle, and was treated several days after the accident with over-the-counter medications. He noted that he was next treated for his low back pain in April 1998 or May 1998, and that he was not seen again for treatment for his back until 2002. The Veteran noted that he returned to the back clinic with back pain, and that an MRI was performed, which revealed a problem. The Veteran was placed on a profile with no running and no rucksack for 9 to 12 months, and noted that he was discharged on profile. The Veteran claimed he had a medical discharge secondary to his back, as well as other problems including rhinitis, a shoulder disorder, and a headache disorder. He noted that he was next treated for his back in 2002 when a second MRI scan was performed, after which he was not treated again for his back disorder until 2008. The examiner noted that a lumbar spine X-ray study performed in July 2008 revealed chronic anterior wedge compression deformities at L1, L2 and L4 vertebral bodies, somewhat unusual for a someone the Veteran's age, and mild marginal endplate spondylosis. Further, the Veteran indicated that he underwent a dual-energy X- ray absorptiometry (DEXA) scan in November 2008 revealing a Z- score of -1.8. The Veteran complained that walking 1 mile produces low back pain to a level 4 or 5, that standing for 1 hour produces pain to a level 8 or 9, that sitting for 1 hour produces pain to a level 5 or 6, that bending at the waist produces pain to a level of 6 to 10, and that going up or down steps produces pain to a level 5 or 6. The Veteran reported flare-ups on a daily basis to a pain level of 1 to 10, four to five times per week, and indicated that flare-ups of pain can last anywhere from 1 hour to all day. The Veteran stated that the flare-up would last all day several times per week, and that during flare-ups he must stop and rest until the flare-up eases up. The examiner observed that the Veteran uses a straight cane, and had used a back brace in 2002. The Veteran denied redness in the back, and reported warmth and tenderness in the lumbosacral area, along with weakness and instability, particularly with lifting. Additionally, the Veteran reported pain, numbness, and tingling radiating down the posterior aspect of both legs to the toes that occurs 4 times per week to a pain level of 8, and lasts for hours. The examiner noted that the Veteran had not been placed on bed rest or hospitalized for his back. On examination, the examiner observed that the Veteran had forward flexion to 80 degrees with pain at 0 degrees and no further range of motion possible; extension to 25 degrees with pain at 0 degrees and no further range of motion possible; right and left lateral bending to 30 degrees with pain at 30 degrees and no further range of motion possible; and right and left rotation to 30 degrees with pain at 30 degrees and no further range of motion possible. The examiner noted a slight increase in pain after repetitive range of motion testing, with no increased weakness, decreased endurance, or incoordination following repetitive range of motion. Further, the Veteran had no change in degrees of range of motion following repetitive range of motion, or muscle spasm during the examination. The Veteran did exhibit tenderness with palpation in the mid lumbosacral area, and did appear to have a slight loss of the lordotic curve in the lumbar area. The examiner indicated that the Veteran's gait was within normal limits, he was able to walk on his heels and toes but was slightly unsteady, he was able to perform tandem walking, used no assistive device, had normal proprioception, and was able to perform heel-shin to just about the ankles. The examiner noted diagnostic test results, including a July 2008 lumbar spine X-ray report, which showed chronic anterior wedge compression deformity at L1, L2, and L4 vertebral bodies, somewhat unusual for the Veteran's age, mild marginal endplate spondylosis, apparent Scheuermann's disease, superimposed disc bulge and protrusion with accompanying foraminal stenosis, without high-grade central canal stenosis, and with moderate central canal stenosis at the L2 to L3 level. The examiner noted a DEXA scan performed in November 2008, which revealed a Z-score of -1.8, and that the Veteran's bone mineral density was considered within normal limits relative to his age. The Veteran was diagnosed with apparent Scheuermann's disease with superimposed disc bulge and protrusion with accompanying foraminal stenosis and moderate central canal stenosis at the L2 to L3 level on MRI, and with chronic anterior wedge compression deformity at L1, L2, and L4 vertebral bodies and mild marginal endplate spondylosis on X-ray. The examiner noted that Scheuermann's disease was not really a disease but a growth anomaly that produces a forward flexion of the thoracic spine and would not be service connected. The examiner opined that there are numerous physical profiles, including those of various CT and MRI scans, dated in January 1998, October 1998, and July 2006, which indicate that the Veteran spent a good portion of his active duty on profile for his low back pain and that his activities were modified. The examiner noted that there is no evidence in the service medical records of re-injury to the lower back, and that all evidence points to normal progression of the disc disease over an eleven year time span versus aggravation on active duty. Most recently, in June 2009, the Veteran underwent a third VA examination. Here, the Veteran noted that during the Veteran's time on active duty, from 2002 to 2003, the Veteran sustained no further acute injuries to his back, but did have worsening of his condition over that time. On examination, the examiner observed tenderness to palpation throughout the lumbar spine, with paracentral muscle spasms bilaterally. Range of motion testing revealed flexion to 70 degrees, left and right lateral flexion to 15 degrees, and left and right lateral rotation to 15 degrees. The examiner noted that all ranges of motion were unchanged with repetitive range of motion testing and were limited by pain in the final 5 degrees of motion, but did not demonstrate further pain, weakness or incoordination, or lack of endurance. The X-ray studies taken in conjunction with the examination included anterior posterior and lateral views of the lumbar spine, and showed a loss of the normal lordosis of the lumbar spine with significant decreased height of the L4 vertebral body and irregular end plates superiorly on the L4 vertebral body. The examiner noted that the disc spaces between L4 to L5, L5 to S1, and L3 to L4 were abnormally small, with no instability noted on X-ray, and no scoliotic deformity. The examiner noted that an MRI performed in April 2009 showed multilevel degenerative disc disease and arthritis throughout the lumbar spine, and there was moderate canal stenosis and bilateral neuroforaminal stenosis at the L4 to L5 level indicated. The Veteran was diagnosed with degenerative disc disease and degenerative joint disease of the lumbar spine, which is posttraumatic, and L4 vertebral body compression fracture. The examiner opined that the Veteran clearly has advanced degenerative disc disease and degenerative joint disease of the lumbar spine which was extremely accelerated for a person of his age. The examiner determined that the Veteran's current spine disability was clearly posttraumatic and due to an injury sustained during the 1997 motor vehicle accident. The examiner believed that the Veteran had a compression fracture at that time which was initially nondisplaced, and was read as negative in initial X-rays; however, over the next several months he lost some height at the vertebral body accentually displacing his fracture and having increased pain. The examiner indicated that, with this displacement, the Veteran had developed abnormal forces throughout the lumbar spine and has developed early degenerative disc disease and degenerative joint disease. The examiner opined that the etiology of the Veteran's degenerative disc disease and degenerative joint disease occurred as a result of his fractured L4 vertebral body, and that his back problems progressed from the accident in 1997. The examiner noted that the Veteran's disability did not have its onset from 2002 to 2003, but instead, became chronically worse from 2002 to 2003, though it was not necessarily due to his activities while in the service. The examiner noted that the natural progression of the Veteran's disability was to get worse, and that no further injury was incurred while in the service to cause an acceleration of the worsening. The examiner concluded that the Veteran's degenerative disc disease and degenerative joint disease of the lumbar spine, posttraumatic and secondary to an L4 compression fracture due to a motor vehicle accident in 1997 had undergone a natural progression of the problem, which had made it worse from that the time of the accident to the present. The examiner specifically opined that, while there was worsening of the disability from 2002 to 2003 during active duty, that there was nothing that occurred during active duty that accelerated the curve of progression, and noted that, were the Veteran not in service during that period of time, his condition would have worsened at the same rate. The Board notes that the Veteran's representative, in a June 2010 Appellant's Post-Remand Brief, maintained that the June 2009 VA examination report was deficient, insofar as the examiner was contradictory in indicating that the diagnosed condition more likely than not became chronically worse during his time of active duty from 2002 to 2003, although it would have worsened at the same rate had the Veteran not been in service. The Board agrees with the Veteran's representative and finds that the June 2009 VA examiner failed to provided qualification and explanation in concluding that the natural progression of the Veteran's disability was to get worse, and that no further injury was incurred while in the service to cause an acceleration of the worsening. Moreover, the examiner noted that although the Veteran sustained no further acute injuries to his back, he did have worsening of his condition while in service. The Board is obligated under 38 U.S.C.A. § 7104(d) (West 2002) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the Veteran. See Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). Moreover, the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Further, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The Veteran, as a layperson, is competent to report on the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone, 8 Vet. App. at 403; Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Accordingly, his lay statements to this extent constitute competent evidence. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Based on a thorough review of the record, and given that the Veteran has received ongoing treatment for his lumbar spine disorder throughout his second period of active service and post- service, and that the June 2009 VA examiner noted a worsening of the Veteran's spine disorder, the Board finds that evidence is in relative equipoise in showing that the current degenerative disc disease, lumbar spine, residuals of fractured L4, as likely as not increased in severity during the Veteran's second period of active service. See Gilbert, 1 Vet. App. at 55. Accordingly, in resolving all reasonable doubt in the Veteran's favor, service connection for degenerative disc disease, lumbar spine, residuals of fractured L4 is warranted. ORDER Service connection for degenerative disc disease, lumbar spine, residuals of fractured L4 is granted. REMAND The Court has determined that a remand by the Board confers upon a claimant, as a matter of law, the right to compliance with remand orders. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In the April 2009 remand, the Board requested that the Veteran be afforded a VA examination that included information as to the Veteran's documented medical history and assertions, to include specific findings as to the nature and etiology of the Veteran's claimed headache disorder. Further the Board requested that the examiner provide an opinion in "clear language" that spoke to the issue of whether or not the Veteran's claimed headache disorder had its onset in service. In each of these respects, the June 2009 VA examination report ordered to comply with the directive of the Board's remand is deficient in terms of information provided. While the June 2009 VA examiner diagnosed the Veteran with chronic headaches, tension and sinus pressure in nature, and addressed whether or not the Veteran's headaches became chronically worse during his period of active duty, from April 2002 to April 2003, the Board is particularly concerned with the absence of information as to the direct etiology of his diagnosed chronic headache disorder. It is not clear whether the Veteran's headache symptoms had their onset in service, and if they are related to service. The absence of the requested information constitutes a procedural defect requiring a further remand. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination, with an appropriate examiner, in order to determine the nature and etiology of his current headache disorder. The claims folder must be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. The examiner should provide an opinion on whether it is at least as likely as not (a 50 percent or more probability) that such a headache disorder had its onset in service or is otherwise related to service. The examiner must set forth the complete rationale underlying any conclusions drawn or opinions expressed in a typewritten report. 2. The examination report should then be reviewed to ensure that all requested information is included in the report. If there are any deficiencies, the examination report must be returned to the examiner for completion. 3. After completion of the above development, the Veteran's claim for service connection for a headache disorder must be readjudicated. If the determination remains less than fully favorable to the Veteran, he and his representative should be furnished with an SSOC and given an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs