Citation Nr: 1132003 Decision Date: 08/30/11 Archive Date: 09/07/11 DOCKET NO. 08-00 387 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his daughter ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran had active service from December 1942 to November 1945. This matter arises before the Board of Veterans' Appeals (Board) from a July 2006 rating decision of the RO in San Diego, California, which declined reopening of the claim for service connection for a low back disability. The Veteran testified before the undersigned in May 2010. A transcript has been associated with the claims file. The Board reopened and remanded the above claim in an August 2010 decision. The case returns now for appellate consideration. The Board also granted service connection for hearing loss, tinnitus, and a bilateral knee disability in the August 2010 decision. These grants were implemented in August 2010 and January 2011 rating decisions. The Veteran has not disagreed with those rating decisions. The issues are no longer on appeal and the Board will not address them further. The Board also denied reopening for a claim of service connection for a left foot/great toe disorder. The Veteran did not appeal this determination. The Board decision is final as to the left foot/great toe disorder and the claim is no longer before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran has degenerative disk disease of the lumbar spine with osteopenia which is at least as likely as not related to service. CONCLUSION OF LAW The Veteran's degenerative disk disease of the lumbar spine with osteopenia was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act (VCAA) The claim for service connection for a low back disability has been granted, as discussed below. As such, the Board finds that any error related to the VCAA on the claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010); Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). II. Service Connection The Veteran contends that he has a low back disability as a result of service. For the reasons that follow, the Board concludes that service connection is warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran's VA treatment records reveal that he has complaints of back pain. The Veteran was seen for a December 2010 VA examination. The Veteran was diagnosed with degenerative disk disease of the lumbar spine with osteopenia. The current disability is well established. The Veteran contends that he incurred the back disability during active duty. The Veteran has testified that he began feeling back pain during service. The Veteran reports that he worked as a truck driver and lifted a large amount of material into and out of trucks regularly. The Veteran's separation documents indicate that he worked as a truck driver over very rough roads in New Guinea and as a hook-man loading and unloading ship cargoes. The Veteran denied seeking treatment for back pain because of the exigencies of war. The Board also notes that as far back as 1984 the Veteran reported that he did seek medical treatment in the years following service but that the doctors had retired or died and records were unavailable. With respect to the Veteran's contentions that he has experienced low back pain since service, the Board observes that 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). While the Veteran is not competent to diagnosis himself, the Veteran is competent to report the continuity of pain. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Thus, the record was not clear whether the Veteran's complaints of back pain since service represented continuity of a disability. The Board remanded for a VA examination to clarify the diagnosis and provide a nexus opinion. The Veteran was seen for a December 2010 VA examination. The examination report states that the examiner reviewed the claims file and service treatment records prior to the exam. The examiner recorded the Veteran's contentions which were consistent with his testimony. The examiner conducted a thorough examination and diagnosed the Veteran. The examiner concluded that the Veteran's back disability was at least as likely as not related to service and the inservice back strain that he reported. The Appeals Management Center (AMC) received this opinion and found it insufficient. The claims file was returned for a medical opinion relying on the medical evidence of record, not the Veteran's report. The examiner filed a March 2011 addendum that states, because of the lack of medical evidence in service and after service, that a nexus is less likely. The Board observes that the AMC is applying the wrong standard. The absence of medical evidence does not render the Veteran's report of symptoms incompetent or incredible. See Buchanan. Examiners are required to base their opinions on the whole record including the Veteran's reports. Id. By emphasizing medical evidence to the exclusion of lay evidence, the AMC has violated several principles of veterans law. The AMC holds this lack of medical confirmation against the Veteran. The Board finds that the December 2010 opinion was based on the whole record, following thorough examination and interview of the Veteran. The Board finds that this opinion is more probative than the March 2011 addendum. The Board also notes the presence of a May 2008 nexus opinion regarding the low back contained in the Veteran's VA treatment records. A different VA doctor, also on review of the claims file and following examination and interview of the Veteran, concluded that the Veteran's back disability was at least as likely as not related to inservice work stress. The diagnosis was unclear in this opinion, necessitating the Board remand. The Board finds that the Veteran has a current low back disability of degenerative disk disease of the lumbar spine with osteopenia, that he had inservice back strain resulting in pain continuous since service and that his current disability is related to that inservice back strain. The Board concludes that service connection is warranted. As such, the Board finds that the evidence is at least in equipoise regarding the Veteran's claim. Consequently, the benefit-of-the-doubt rule applies, and the claim must be granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for degenerative disk disease of the lumbar spine with osteopenia is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs