Citation Nr: 1034603 Decision Date: 09/14/10 Archive Date: 09/21/10 DOCKET NO. 09-10 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for degenerative disc disease, lumbar spine (hereinafter "low back disability"). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD S. Flot, Associate Counsel INTRODUCTION The Veteran had active service from March 1951 to October 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In December 2009, the Board remanded this matter for further development. The required development having been completed, adjudication on the merits may proceed. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence shows that the Veteran's currently diagnosed low back disability is related to his service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, 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 will not be discussed. II. Service Connection The Veteran seeks entitlement to service connection for a low back disability. He contends that this disability was incurred during service when he fell on a steel rail. Service connection means that the facts establish that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish service connection for a disability, there generally must be (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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board must assess the probative value of all the evidence, including medical evidence. The weight and credibility of evidence may be discounted "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 Board must account for evidence which it finds to be persuasive or unpersuasive and provide reasons for rejecting any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt shall be given to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 49. As such, the Veteran prevails when the evidence supports his claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Id. The Veteran's service treatment records, except his separation examination, have not been associated with the claims file because they were destroyed in a fire at the National Personnel Records Center (NPRC) in 1973. There is a heightened obligation on the part of VA to consider carefully the benefit of the doubt rule and to explain findings and conclusions because these records were destroyed while in the possession of the government. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). It is noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). At his separation examination in October 1953, the Veteran's spine was given a normal clinical evaluation. VA treatment records beginning in February 2006 list degenerative joint disease among the Veteran's past medical history. A treatment record from Dr. J.W. dated in April 2005 reflects a diagnosis of spinal stenosis. Treatment records dated in July 2007 and February 2008 reveal that he was experiencing lumbar pain and pain in his low back. In a letter dated in June 2008, Dr. J.W. indicated that he has treated the Veteran since 1990. Dr. J.W. then recounted that the Veteran stated he injured his low back during service in 1952 after falling on a steel rail and has had major issues with low back pain ever since during his first appointment. Next, he noted that magnetic resonance imaging performed in 2003 revealed degenerative disc disease with secondary areas of lateral recessed stenosis present at L3-L4 and L4-L5. Dr. J.W. finally opined that the Veteran's current low back issues dated back to his 1952 in-service fall. The Veteran was afforded a VA spine examination in July 2010. He reported to the examiner that he injured his back in a fall during service in 1952. He further reported that he was told he had degenerative disc disease and sciatica in the 1960's. After physical examination and review of the claims file and electronic VA treatment records, which included June 2010 spinal X-rays, the examiner diagnosed the Veteran with degenerative joint disease, degenerative disc disease of the thoracolumbar spine, and the residuals of a compression fracture at L1. The examiner also noted that radiologic evidence of a remote compression fracture was consistent with the Veteran's reported history of an in- service fall resulting in back trauma. As such, he opined that it was at least as likely as not that the Veteran's low back disability is related to his service. In light of the evidence, the Board finds that service connection for a low back disability is warranted. The Veteran currently is diagnosed with spinal stenosis, degenerative joint disease, degenerative disc disease of the thoracolumbar spine, and the residuals of a compression fracture at L1. No documentation exists conclusively confirming that he injured his back after an in-service fall in 1952. Such confirmation cannot be expected from service treatment records, however, as only his October 1953 separation examination survived the 1973 NPRC fire. While this examination found the Veteran's spine to be normal, it did not include X-rays of his spine. X-rays from June 2010 revealed the residuals of a compression fracture at L1. The VA examiner who conducted the July 2010 VA spine examination indicated that this finding was consistent with the Veteran's reported history of an in-service fall resulting in back trauma. As such, the Board resolves any reasonable doubt regarding this issue in his favor by finding that he incurred a back injury due to a fall during service. The VA examiner who conducted the July 2010 VA spine examination also opined that the Veteran's current low back disability is related to this in-service back injury. Dr. J.W. similarly opined that the Veteran's current low back issues dated back to his 1952 in-service fall. The evidence therefore indicates not only that the Veteran currently has a low back disability and that he incurred a low back injury during service, but additionally that there is a nexus between the current low back disability and the in-service back injury. Accordingly, the Veteran is entitled to service connection for his low back disability. ORDER Service connection for a low back disability is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs