Citation Nr: 1115565	
Decision Date: 04/20/11    Archive Date: 05/04/11

DOCKET NO.  08-32 863	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for a low back disorder.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

Amy M. Smith, Associate Counsel







INTRODUCTION

The Veteran served on active duty from July 1959 to December 1961.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating action of the Department of Veterans Affairs Regional Office (RO) in Huntington, West Virginia.  Due to the Veteran's residence, his claims file remains under the jurisdiction of the RO in Atlanta, Georgia.

This appeal was previously before the Board in March 2010, when it was determined that new and material evidence sufficient to reopen a claim of entitlement to service connection for a low back disorder had been received and the issue was remanded for additional development.  Such development having been completed, the appeal has been returned to the Board for further review.

FINDING OF FACT

Lumbar muscle strain was found in service, lumbosacral sprain was diagnosed when examined for VA purposes in 1964, and lumbar spine strain was diagnosed when examined for VA purposes in 2010, in connection with this appeal.  

CONCLUSION OF LAW

Lumbar spine strain was incurred in service.  38 U.S.C.A. §§ 1101, 1110, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2010).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duties To Notify And Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 3.326(a).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Proper VCAA notice must inform the claimant of any information and 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, in accordance with 38 C.F.R. § 3.159(b)(1).  

In this case, the Board is granting 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 further discussed.

General Laws And Regulations

Service connection may be granted for disability resulting from injury suffered or disease contracted in the line of duty, or for aggravation in service of a pre-existing injury or disease.  38 U.S.C.A. § 1110.  Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service.  Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303.

In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; 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.

Analysis

The Veteran attributes his currently-shown low back disorder to active military service, and, specifically, to an in-service automobile accident.

A November 1960 treatment report shows the Veteran complained of continuous low back pain following an automobile accident earlier that month.  Physical examination of the spine at that time revealed tenderness over the T12-L1 region.  The provisional diagnosis was lumbar contusion, with a recommendation for further evaluation to rule out a vertebral fracture.  Subsequent service treatment records show continued complaints of low back pain.  X-ray examination in May 1961 was essentially normal, however, leading medical providers to conclude that the Veteran's low back symptoms might "at best" amount to a muscle strain.  The December 1961 separation examination reflects a normal clinical evaluation of the spine.

During a May 1964 VA examination, in connection with the Veteran's original claim for service connection for a low back disorder, the Veteran's 
in-service injury was noted, as well as his report of occasional low back pain since that time.  X-ray of the lumbar spine was essentially normal.  The diagnosis was lumbosacral strain residuals, although the examiner did not specifically opine as to the etiology of the condition.

The report of a May 1991 VA examination reflects an X-ray finding of degenerative changes at several levels of the lumbosacral spine, but does not specify which levels.  The diagnosis was degenerative joint disease of the lumbar spine.  Subsequent private treatment records, dated in 2006, reflect similar findings.

In April 2010, in accordance with the Board's March 2010 remand, the Veteran underwent a pertinent VA examination.  The claims file was reviewed in conjunction with the examination, and upon clinical and X-ray evaluation of the lumbar spine, the latter of which revealed osteophyte formation at L1-L2, the examiner provided a diagnosis of lumbar spine strain.  Additionally, the examiner determined that this condition less likely as not had its onset during active military service, including the in-service back injury.  In support of this determination, the examiner stated that the Veteran's in-service injury was not to the low back, but rather the thoracolumbar junction, and that, in any event, the Veteran's back was not treated in any significant way until 2006, many years after service.

A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  Here, the objective medical evidence reflects in-service injury to the Veteran's back.  Although the 2010 VA examiner found that this injury did not involve the low back, this finding is contradicted by the service treatment records, which clearly document findings of tenderness to, in part, the L1 region of the spine and a lumbar contusion.  Given this, together with evidence reflecting findings of lumbar strain soon after service, and when examined most recently in connection with this appeal, the Board finds that the evidence is at least in equipoise and, resolving all reasonable doubt in favor of the Veteran, service connection for the disability diagnosed on the most recent VA examination as lumbar spine strain is considered warranted.

ORDER

Service connection for lumbar spine strain is granted.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs