Citation Nr: 1136680 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 09-02 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for lateral herniated nucleus pulposis at L5-S1, claimed as lower back pain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran, the Veteran's stepson, and the Veteran's friend ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1980 to May 1983. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board notes that, while the Veteran filed his claim with the RO in Montgomery, Alabama, the rating decision was issued by the San Juan, Puerto Rico RO. Thereafter, the Veteran was sent a January 2009 statement of the case, and a February 2010 supplemental statement of the case by the RO in Montgomery, Alabama. Additionally, the Veteran was afforded a Video Conference Hearing before the undersigned Veterans Law Judge in August 2011. A written transcript of that hearing was prepared and incorporated into the evidence of record. FINDING OF FACT The evidence demonstrates it is likely that the Veteran's currently diagnosed lateral herniated nucleus pulposis at L5-S1 is related to his active service. CONCLUSION OF LAW The criteria for a grant of service connection for a low back disability have been met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). In this case, the Board is granting in full the benefits 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 further discussed. II. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a Veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2010). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). 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)). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. The Veteran asserts that his lower back disability is related to his active service. Specifically, the Veteran contends that he injured his back when he was lifting crates and heard his back pop. The Veteran's July 1980 entrance examination reflects that he had no history of a back condition and his spine was considered normal upon clinical evaluation. Multiple service treatment records show that the Veteran complained and was treated for back pain. Additionally, an October 1982 record shows that the Veteran complained of chronic low back pain for two years. He also stated that his back problems started while overseas, lifting heavy boxes. The doctor noted that the Veteran's pain appeared to come from a strain of the low back that went unnoticed. The November 1982 record shows that the Veteran complained of muscle spasms in his lower back. The record notes that the Veteran was given instructions on how to lift, back exercises, and Motrin. Furthermore, the Veteran reported for multiple treatments for his lower back in March 1983. The doctor noted that the Veteran reported to the clinic with complaints of lower back pain for a year with lifting and climbing for his MOS. Additionally, the doctor noted that the Veteran had previously been on light duty, given medication with little relief, and back exercises that didn't help his condition. Lastly, the Veteran's April 1983 separation examination did not document any low back conditions. The Veteran was afforded a Video Conference Hearing in August 2011, during which he testified that he hurt his back while lifting boxes on a ship. Additionally, he stated that he went to the infirmary and was given medication. The Veteran's representative discussed all in-service accounts of the Veteran seeking medical treatment for his low back pain. Moreover, the Veteran stated that he had a medical order not to do any lifting, but his supervisor insisted that he did it anyway. The Veteran reported that he had constant back pain since the in-service injury. Furthermore, the Veteran reported that he did not have any back injuries after discharge, and discussed the symptoms of his back condition that he experienced. The Veteran's stepson testified that he has known the Veteran since he was 14, and reported that he was in constant pain all the time. The Veteran's stepson also reported that the Veteran consistently stated that he hurt his back while lifting boxes on a ship. Furthermore, the Veteran's friend testified that she had known the Veteran since he returned from service. Additionally, she stated that at that time, he complained of constant back pain. The record also contains VA outpatient treatment records that show treatment for the Veteran's chronic low back pain. The Veteran received private treatment for his low back disability. The record contains a March 2008 MRI of the lumbar spine. The impression was that the Veteran had foraminal and far latcral disc herniation at L3-4 on the right and at L5-S1 on the left, and recess narrowing at L5-S1on the left. Additionally, the record contained multiple 1998 Emergency Room hospital records, where the Veteran reported low back pain that radiates down his leg. Furthermore, the Veteran submitted multiple lay statements. A letter by a friend of the Veteran stated that he had known the Veteran for more than 40 years. Additionally, the friend stated that the Veteran never had physical problems before he became a Marine. He stated that the Veteran started having back problems after an injury in-service, and that the Veteran complained of back problems and the pain it was causing. He reported that after service, the Veteran continued to have back pain until this day. Lastly, he stated that the Veteran's back seemed to have gotten worse throughout the years, as his complaints were more frequent. The Veteran also submitted statement a letter from his high school sports coach. He stated that the Veteran did not injure his back during his high school career. Furthermore, he reported that the Veteran graduated in 1980, when he was 19. He stated that in the two months that followed, the Veteran joined the United States Marine Corps. The Veteran submitted an opinion letter from his private treating physician. The physician stated that the Veteran reported that the onset of his back pain began suddenly after an injury in 1981-1982. Additionally, the Veteran reported that he hurt his back while lifting a heavy box while he was in service. The physician stated that the Veteran's low back pain was due to lumbar radiculopathy and lumbar spinal stenosis due to L3-4/L5-S1 herniated discs, which may have resulted from heavy lifting while he was in the military service. Moreover, the physician noted that the Veteran started this complaints while he was in the service per the records he presented. The Veteran's physician submitted a subsequent letter further detailing his opinion. The physician stated that after reviewing the Veteran's service medical records, he found that the Veteran injured his lower back by lifting heavy boxes in 1981-1982 time frame while in the U.S. Marine Corps. The doctor noted that the Veteran's records showed that he was treated approximately six times in his three years of military service. Moreover, the physician stated that he read a letter from the Veteran's high school coach certifying that he did not injury his back at any time during his high school sports career. The physician concluded that the Veteran's low back pain was due to lumbar radiculopathy and lumbar spinal stenosis due to L3-4 and L5-S1 herniated discs, which more likely than not resulted from the heavy lifting his MOS required. The Veteran was afforded a VA examination in October 2008. The Veteran reported that he had acute back pain after lifting heavy boxes onboard ships in the Pacific, which was treated with Motrin and muscle relaxers. Additionally, he reported that when he came out of the military in 1983, he continued to have back pain, and in 1988 experienced the onset of lower extremity weakness. He had physical therapy for a few weeks, and was treated with medication. He reported that he was in constant lumbar spine pain, radiating to both legs at times. Moreover, the Veteran reported that he was unable to walk more than a few yards, and used a cane. After examining the Veteran, the examiner concluded that the condition of the lumbar spine, degenerative disc disease, was not caused by or a result of active duty injury or illness. The examiner stated that treatment in 1982 stated that the Veteran complained of low back pain, which he had experienced for two years; the Veteran enlisted in 1980. Additionally, the examiner noted that the Veteran stated that his pain level was 8/10 when he left the military, but did not report it on the separation examination. The examiner noted that the Veteran worked construction and manual labor since separation. The examiner also noted that recorded symptoms by military providers and examination findings indicated that the Veteran had mechanical back pain and muscle spasms with certain activities. Additionally, the examiner stated that the Veteran had no flow of care for the spine from 1983 until 2008, and stated that there was no evidence that his current condition was related to mechanical back pain during active duty. Lastly, the examiner stated that while it was true that degenerative disc disease could be caused by lifting, twisting, or other injury, his complaints during active duty and the physical examinations did not indicate a disc problem. After a careful review of the evidence, the Board finds that the Veteran's service treatment records, private treatment records, pertinent lay evidence, and, in particular, the positive nexus opinion provided by the Veteran's private treating physician, demonstrate that his currently diagnosed low back condition is related to his period of military service. Additionally, the Board notes that back pain, and the symptomatology thereof, are the type of condition subject to lay observation. The Board also wishes to note the holding of Jandreau vs. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), that lay evidence, such as that provided by the Veteran in this case, can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional, as is the case here with the December 2007 VA general medical examination. See also Davidson v. Shinseki, 2009-7075 (Fed. Cir. Sep. 14, 2009). Further, the Board is of the opinion that this case law is of particular significance in a case, such as this, where the Veteran indicated the presence of relevant symptomatology prior to his separation from active service, reported continuity of symptomatology, a positive physician opinion linking his current condition to the in-service incident, and nothing in the record explicitly refutes the Veteran's account of his medical history regarding this disability. The October 2008 examiner did state that while it was true that degenerative disc disease could be caused by lifting, twisting, or other injury, his complaints during active duty and the physical examinations did not indicate a disc problem. However, there were no x-ray or MRI reports taken at the time of discharge to determine if the Veteran had a disc problem present. Additionally, the VA examiner noted that degenerative disc disease could be caused by lifting or twisting, which the Veteran stated that these instances occurred multiple times as part of his MOS, while reporting to the clinic for back pain. For the foregoing reasons, the Board concludes that the balance of positive and negative evidence is at the very least in relative equipoise with respect to the Veteran's low back condition claim. He is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Indeed, where the evidence supports a claim or is in relative equipoise, the appellant prevails. 38 U.S.C.A. 5107 (b); Gilbert, 1 Vet. App. at 53. Accordingly, the Board finds that service connection for a low back condition is warranted. ORDER Entitlement to service connection for lateral herniated nucleus pulposis at L5-S1 is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs