Citation Nr: 1031925 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 05-00 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran had active service from March 1970 to March 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified at an April 2005 hearing at the RO. A transcript of the hearing has been associated with the file. In a May 2007 decision, the Board denied the Veteran's claim of entitlement to service connection for low back disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans' Claims (Court). The Court granted the parties' Joint Motion for Remand of the Board's May 2007 decision. Pursuant to the actions requested in the August 2008 Joint Motion, the Court vacated the Board's decision and remanded this matter to the Board for readjudication with instructions to address the Veteran's complaints of an in-service back injury that were reported at an April 1973 medical examination the month following the Veteran's discharge from military service. In October 2009, the Board requested an opinion from an independent medical expert (IME) pursuant to 38 C.F.R. § 20.901(d) (2009). That opinion was obtained and associated with the VA claims file in November 2009. In April 2010, the undersigned requested that the physician who provided the IME opinion clarify his opinion. Accordingly, an addendum opinion dated in May 2010 was obtained and associated with the claims file. Thereafter, the Veteran and his attorney were provided a copy of the IME addendum opinion and provided a period of 60 days to respond. In July 2010, the Veteran responded that he was submitting an argument from his attorney and waived the right to have his case remanded to the RO for review of the evidence he was submitting. In an August 2010 statement, the Veteran's attorney asserted that the evidence of record affirmatively reflected that the Veteran's currently diagnosed low back disorder was first manifested during his active military service and that the requirements for an award of service connection had been met. FINDING OF FACT A current low back disorder as likely as not had its onset in active service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, a low back disorder was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Regarding the claim of entitlement to service connection for a low back disorder, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Laws and Regulations The Veteran contends that his claimed low back disorder, currently diagnosed as degenerative disc disease of the lumbar spine, is related to his military service. In particular, he has asserted that evidence of record showed in-service complaints of low back pain as well as complaints of back pain immediately following his discharge from military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (2009). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), 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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2009). Factual Background Service treatment records dated in May 1970 and July 1972 documented complaints of low back pain. The Veteran's February 1973 separation examination report did not reveal any notations of low back abnormalities. The Veteran's service treatment records do not document his being in a body cast for any amount of time. Records do show that he injured his left shoulder playing football and that his left arm was in a sling for several weeks. The Board notes that the Veteran is currently service-connected for degenerative joint disease of the acromioclavicular joint of the left shoulder, which resulted from an in-service football injury. An April 1973 VA examination, an evaluation performed almost immediately after the Veteran left military service, documented the Veteran's description of low back pain as well as his assertion that his back began bothering him during his military service. Physical examination findings were within normal limits except for the pain in the low back. The examiner diagnosed chronic low back strain, by history. X-rays of the low back performed in May 1973 revealed mild dextroscoliosis, but no other significant abnormalities. VA treatment records dated in December 1977 documented the Veteran's complaint of low back pain. At that time, the Veteran was diagnosed with chronic muscular strain, probably secondary to an anxiety component. X-rays showed minimal dextro convex scoliosis at the L1- L2 level; all other findings were normal. Private treatment records from the MacGregor Clinic dated in December 1977 revealed a diagnosis of low back pain. A January 1978 treatment note from the Bone and Joint Clinic documented a diagnosis of myofascitis. Additional VA treatment records dated in June 1978 showed a diagnosis of musculoskeletal pain syndrome. A November 1982 VA treatment record indicated that the Veteran had a continuing diagnosis of "myofascitis - back." VA treatment notes dated from 2000 to 2002 showed continued treatment for low back pain, lumbar scoliosis, and back strain. VA X-rays of the lumbar spine conducted in January 2000 showed right lateral lumbar scoliosis and minor degenerative changes. A June 2001 VA X- ray of the lumbar spine revealed degenerative changes and degenerative disc disease at L2-3 that had progressed since prior examination. Minor dextroscoliosis was noted to be more apparent than on the prior examination. A February 2002 VA lumbar spine MRI report listed findings of multilevel degenerative disc disease in the lumbar spine (most significant at L2-3 level, with circumferential disc bulge at that level with left greater than right foraminal compromise but no central canal stenosis), left lateral L4-5 disc herniation without compression of the exiting left L4 root, and relatively mild facet degenerative changes at multiple levels. In a September 2003 VA spine examination report, the examiner diagnosed mechanical low back pain secondary to multilevel degenerative disc disease and stated that the Veteran's current low back condition was not at least as likely as not related to the accident in-service. It was indicated that it was more likely that the Veteran's current low back condition was related to the injury he sustained during recent years and the degeneration was due to aging. In a May 2004 letter, Dr. F. J. J. indicated that he had been treating the Veteran for severe lumbar disc degeneration especially at L5 and L1. He stated, "[i]t is my opinion that this condition is related to an injury that must have occurred at least 30 years ago. [The Veteran] described an injury that occurred to him while in the military, stationed in Japan, that caused him to be in a body cast for six months. There is a substantial factor that this trauma began the process of disc degeneration that we find in this patient today." Additional VA treatment notes dated in 2004 and 2005 showed findings of chronic pain syndrome, chronic low back and right leg pain, sciatic pain, and chronic right L5-S1 radiculopathy. VA MRI reports dated in 2004 revealed levoscoliosis, multilevel degenerative disc disease and facet arthropathy with multilevel canal narrowing, increased intervertebral disc space narrowing at L2-3, mild intervertebral disc space narrowing present at L5-S1, slight increase in extent of hypertrophic degenerative disease on vertebral body margins anteriorly at several levels, broad left paracentral L2-3 HNP (herniated nucleus pulposus), continued severe left foraminal stenosis, interim enlargement of the right paracentral L5-S1 HNP with stable mild bilateral foraminal stenosis, and stable moderate foraminal stenosis at L3-4 with mild canal stenosis. A July 2004 Social Security Administration (SSA) disability determination report listed a primary diagnosis of disorders of the back and a secondary diagnosis of history of polysubstance dependence in remission. A March 2005 SSA disability determination report listed a primary diagnosis of diabetes mellitus and a secondary diagnosis of disorders of the back (discogenic and degenerative). In a September 2005 VA spine examination report, a VA examiner listed a detailed history of the Veteran's low back complaints. The record was noted to show that the Veteran complained of back pain and/or developed acute low back strain following a 1988 assault, moving a snowblower in January 1994, and a 1997 motor vehicle accident. The examiner diagnosed mild right left SI radiculopathy with herniated disc at L5/S1 and degenerative disk disease. Following the September 2005 VA examination of the Veteran, the examiner opined that he did not find any strong evidence that the present degenerative disk disease and right S1 radiculopathy were due to service-connected injury. He concluded, "The X-ray of the lumbar spine remained normal for years since the service. If [the Veteran] had the service-connected injury, I believe that there will be some disk space narrowing on the regular lumbar spine X-ray in the 1970's; however, this did not happen, therefore the degenerative disc disease is most likely due to the long history of his work, not due to the service-connected injury." A March 2008 VA lumbar spine X-ray report revealed right lateral scoliosis and multilevel degenerative disc disease with degenerative changes. An August 2009 VA treatment record showed that the Veteran presented with complaints of low back pain. The examiner assessed acute exacerbation of chronic low back pain which he has had since 1973. A lumbar spine X-ray report dated in August 2009 reflected severe degenerative joint disease at L2-L3 and L5-S1 as well as degenerative changes of the facets at L5-S1. In October 2009, the Board requested an IME opinion as to whether it was at least as likely as not that the Veteran's current degenerative disc disease of the lumbar spine was a result of his military service. The medical expert was to address the Veteran's in-service complaints of low back pain as well as his post-service complaints of back pain, in particular in April 1973. He was also to comment on the significance of the January 1978 and November 1982 diagnoses of myofascitis as well as the Veteran's history of multiple post-service back injuries. Additionally, the medical expert was to comment on the medical opinions already of record, expressing agreement or disagreement with each. In his November 2009 IME opinion, Dr. D. M. stated that "[i]n my opinion, it is not at least as likely as not that the Veteran's current degenerative disc disease of the lumbar spine is a result of his military service." He indicated that he based this conclusion on the service treatment records which showed that the Veteran did not complain of back pain at the time of his left shoulder injury in 1971. The physician found that it was highly unlikely that the Veteran sustained any significant damage to his lumbar spine without realizing it. In addressing the Veteran's multiple diagnoses of myofascitis, Dr. D. M. stated that it was "[m]ore than likely" that the Veteran "has had lumbar degenerative disc disease with discogenic pain for several decades. This may have started either before he entered the service or during his time in the service, although I do not believe that it is directly related to the injury and fall that he suffered in 1971." Additionally, the physician noted that "the findings of normal lumbar spine x-rays in the 1970's do not exclude the possibility that degeneration had been occurring. Again, this most likely had started before the patient entered the service, even though he may not have been symptomatic at the time." Thereafter, the Board found that the November 2009 IME required clarification. Accordingly, the Board requested that Dr. D. M. revisit his November 2009 IME opinion and furnish an opinion clarifying his rationale and conclusions with regard to whether the Veteran's currently diagnosed degenerative disc disease of the lumbar spine clearly and unmistakably pre-existed his enlistment into the military service and, if so, whether there also was clear and unmistakable evidence that the pre-existing disease was aggravated (meaning chronically worsened or permanently increased in severity) during his active military service beyond its natural progression. If Dr. D. M. found that the Veteran's degenerative disc disease of the lumbar spine did not pre-exist his military service, he was requested to indicate whether it was at least as likely as not that the Veteran's currently diagnosed degenerative disc disease of the lumbar spine was due to any incidence of his military service. In his May 2010 clarification opinion, Dr. D. M. stated that based on the medical evidence, the Veteran's currently diagnosed degenerative disc disease did not clearly and unmistakably pre- exist his enlistment into service. The physician further opined that it was at least as likely as not that the Veteran's currently diagnosed degenerative disc disease had its onset in service. However, the physician noted that there was no evidence that the Veteran's currently diagnosed degenerative disc disease was etiologically related to his active duty service. He opined that the Veteran's current diagnosis and disability was more likely related to normal aging, although he did acknowledge that it was at least as likely as not that the disability began during his time in service. Analysis As discussed above, post-service VA and private treatment records showed that the Veteran was treated for multiple low back disorders. Hickson element (1) is therefore met. With respect to Hickson elements (2) and (3), a review of the available service treatment records does reveal complaints of low back pain in May 1970 and July 1972. Evidence of record further showed consistent complaints of low back pain related to events during active service that began shortly after service discharge in 1973. In addition, there are conflicting medical nexus opinions concerning the onset date and etiology of the Veteran's claimed low back disorder. The Board acknowledges the negative medical opinions of the VA examiners in the September 2003 and September 2005 VA examination reports of record. However, based on the findings in the May 2004 private medical opinion as well as the November 2009 and May 2010 IME opinions, the Board concludes that there is support for the conclusion that the Veteran's claimed, current low back disorder had its onset during his period of active military service. After consideration of all of the evidence, the Board finds it is as likely as not that the Veteran's low back disorder was incurred during his period of active military service. Thus, Hickson elements (2) and (3) are found to be met. Based on the foregoing, the Board finds that the evidence of record is at least in equipoise with regard to this claim. Therefore, with application of the benefit of the doubt doctrine, service connection for a low back disorder, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the appeal is granted. ORDER Entitlement to service connection for a low back disorder is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs