Citation Nr: 1217751 Decision Date: 05/17/12 Archive Date: 05/24/12 DOCKET NO. 09-00 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. A. Hoeft, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1973 to July 1976. This matter is before the Board of Veterans' Appeal (Board) from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The appeal is now under the jurisdiction of the Nashville, Tennessee RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The Veteran was treated on multiple occasions during service for low back pain and related symptoms, and there is competent and credible evidence of continuing back symptomatology since separation from service; resolving doubt in the Veteran's favor, a current low back disability is causally related to active service. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, a low back disability was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties 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 claim is granted. Accordingly, any VCAA deficiencies are non-prejudicial. Service Connection The Veteran contends that his back problems had their onset during active duty service. He notes that from 1973 to 1976, he was treated on no fewer than five occasions for back pain. He has endorsed continuous low back symptoms since that time. See Notice of Disagreement June 2010. In a more recent statement, the Veteran noted that his low back pain was essentially exacerbated during service by carrying heavy artillery and the weight of his ruck sack. See March 2012 VA Form 21-4138. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran's entered active duty service in June 1973. In July 1973, service treatment records reflect complains of back pain without trauma. In August 1973, service treatment records reflect complaints of back pain after being hit between the shoulder blades while playing basketball. The diagnostic impression was minor mechanical back strain. A March 1974 service treatment record shows complaints of pain in the right side of the lower back. A June 1974 dental medical history report reflects that the Veteran last consulted a medical doctor in October 1973 regarding back pains. An April 1976 service treatment record reflects complaints of low back since being in a hammock-like bed at Officer Candidate School (OCS). Objective examination revealed a mild "sway" in the back. No specific diagnostic findings were made at that time. An April 1976 service treatment record again reflects complaints of recurrent low back pain. The Veteran stated that his back hurt with any type of movement, but that he was unable to identify the initial onset of pain. He did note that the pain had worsened since playing basketball one week prior. Objective examination revealed a mild increased in lumbar lordosis; mild swaying of the back; and slouched posturing. Pain was elicited throughout range of motion testing and hyperextension. The assessment was mild structural increase in pelvic angle worsened by poor posture, and possible back strain as noted in previous assessments. The Veteran's June 1976 separation Report of Medical History noted "recurrent back pain." The examining physician noted an episode of mid-back pain three months prior, but with no subsequent problems. Since that time, VA treatment records show sporadic, but continued treatment for back pain and related symptomatology. These treatment records (other than the January 2012 VA spine examination, discussed below) do not contain medical opinions of whether the Veteran's ongoing back pathology had onset in service or is causally related to service. The Veteran has stated that he received treatment for his back problems from a Dr. Waller following service in 1978; however, in September 2011 VA Form 21-4142, the Veteran indicated that he had no "follow-up information" for Dr. Waller and that he did not know how to get in touch with him, as he last saw him in 1978. Again, in various statements submitted in support his claim, the Veteran reported that his back disability began in-service and that he continued to have related back symptomatology since that time. He acknowledges that he had an additional back injury related to civilian motor vehicle accident in 1978; however, he insists that the documented low back symptoms and diagnosis in-service was the initial onset of his current back disability. See September 1978 Letter from Veteran. As an initial matter, the Board finds that a current back disability has been established. A January 2012 VA examiner has diagnosed the Veteran with mechanical low back pain, while July 2010 VA treatment records note a diagnosis of degenerative joint disease of the lumbar spine. The Board also finds that there is evidence of in-service back injuries and treatment with recurrent back pain and diagnoses of back disabilities in service, including mechanical back strain (notably, the same diagnosis the Veteran received in-service, nearly 30 years prior). Thus, the Veteran only need establish a nexus between the current back disability and active service. Here, the Veteran has reported that he continued to experience back pain and discomfort following in-service injuries in 1973 and 1976. A continuity of symptomatology can serve to satisfy the requirement for a nexus between an in-service event and a current disability. The Veteran has reported a continuity of back pain since service, with potential exacerbation due to a 1978 civilian motor vehicle injury. He is competent to report a continuity of similar symptomatology in this regard (as back pain is certainly capable of lay observation) and such report may serve to satisfy the requirement for a nexus between an in-service event and a current disability. Barr, supra. Further, his reported continuity of similar symptomatology following his in-service back injuries is credible and is positive evidence that supports a finding of nexus in this case. The only evidence against a causal nexus in this instance is the negative opinion of the January 2012 VA examiner who opined that the current back disability is not related to service. The examiner noted that Veteran had a "well documented history" of similar back complaints during service, but that mechanical type back pain was a "very common complaint that affects two-thirds of the adult population at some point during their life." Without any history of "significant" injury while in service, he opined that it was unlikely that his in-service complaints were related to the current back disability. This medical opinion is considered to be competent and probative; however, the Board notes that the examiner's opinion did not include any discussion of the Veteran's current DJD of lumbar diagnosis (see July 2010 VA treatment note) or his reports of continued back symptomatology since service. It remains unclear whether that evidence would have affected the examiner's opinion. In addition, while the examiner reasoned that the Veteran did not have any "significant" back injury during service, the Board notes that this is not required in the instant case. Indeed, the Veteran's service treatment records patently document injury to the mid and low back after playing basketball on two occasions, as well as significant back discomfort after sleeping on a hammock-like style bed, with objective findings of increased lordosis and swaying. The Board notes further that the examiner did provide a diagnosis of mechanical low back pain and noted that this was a diagnosis that was also made in service. The Board finds that this evidence tends to show chronicity of the Veteran's current lumbar disability. Based on the record, the Board finds that the evidence of a nexus is at least in equipoise. For a Veteran to prevail in his claim, it must only be demonstrated that there is an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for benefits to be denied. The evidence shows multiple in-service back complaints and treatment, as well as a diagnosis of mechanical low back pain, with subsequent competent and credible reports of continuity of back symptomatology since service. The most recent VA examination shows a diagnosis of mechanical low back pain, which was likewise diagnosed nearly 30 years ago in-service. With these considerations in mind, and based on the evidence, the Board finds that any remaining reasonable doubt concerning the continuity of symptomatology should be resolved in favor of the Veteran. Accordingly, service connection for a low back disability is granted. ORDER Entitlement to service connection for a lumbar spine disability is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs