Citation Nr: 1237256 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 07-08 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for degenerative disc disease of the lumbar spine. [The claims for entitlement to service connection for a right knee disorder and PTSD are addressed in a separate Board decision.] REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1954 to June 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the above claim. The Veteran also perfected an appeal of the denial of entitlement to service connection for hypertension; however, he withdrew this claim from appeal in June 2008. See 38 C.F.R. § 20.204 (2011). In August 2009, a hearing was held before the undersigned Acting Veterans Law Judge. 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). FINDING OF FACT The Veteran's degenerative disc disease of the lumbar spine was incurred in, or caused by, his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative disc disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2011); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2011). In this decision, the Board grants service connection for degenerative disc disease of the lumbar spine. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. The Veteran contends that he developed degenerative disc disease of the lumbar spine as a result of his regular duties as a lineman during active military service, which involved climbing poles while carrying heavy equipment. He also contends that he fell from these poles on multiple occasions during the performance of these duties. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disease diagnosed after service may be service connected when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992); see, e.g., Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In order to establish service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see generally 38 C.F.R. § 3.303(a). Alternatively, under 38 C.F.R. § 3.303(b), the second and third elements can be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The claimant must show (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. Id. at 307. Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488, 496 (1997). The nexus requirement for continuity of symptomatology is not equivalent to the nexus requirement for service connection, as requiring medical nexus evidence under 38 C.F.R. § 3.303(b) would nullify that regulation. Id. at 497. However, it does not follow that any present disability is necessarily related to any demonstrated continuous symptomatology; competent lay or medical evidence must show a relationship between the continuous symptoms and the presently diagnosed disability. Id. When evaluating a claim for disability benefits, VA must give due consideration to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Generally, the Board should determine whether the Veteran's particular disability is the type of disability for which lay evidence is competent, and, if so, weigh that evidence against the other evidence of record in making its determinations. Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). Lay evidence can be competent and sufficient to establish a diagnosis if (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. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, a lay witness is competent to testify to the occurrence of an in-service injury or incident where the issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lastly, a layperson may be competent to testify to the manifestations of a chronic condition during service or a presumptive period or to continuity of symptomatology. Hickson v. West, 12 Vet. App. 247, 253 (1999). Specifically, the Veteran is competent to report symptoms of pain. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Once evidence is determined to be competent, the Board must determine whether the evidence is credible. In assessing the credibility of the evidence, the Board may properly consider facial plausibility, internal consistency, consistency with the other evidence of record, the demeanor of the witness if oral testimony is given, self-interest, and possible bias. Gardin v. Shinseki, 613 F.3d 1374, 1379-1380 (Fed. Cir. 2010) ("[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc." (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006))); Pond v. West, 12 Vet. App. 341, 345-47 (1999); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board must assess the credibility and weight of all evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the Veteran. Washington, 19 Vet. App. at 366-67; Owens v. Brown, 7 Vet. App. 429, 433 (1995). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veteran's service records were not available for review, as they appear to have been destroyed in the fire at the National Personnel Records Center in St. Louis, Missouri in July 1973. Under such circumstances, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's treatment records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). No presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer, 19 Vet. App. at 217-18 (Court declined to apply an "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). The Veteran has a current lumbar spine disability. A magnetic resonance imaging (MRI) report dated December 1999 shows moderate degenerative changes of the lumbar spine. Specifically, the MRI report notes multilevel disc bulging with osteophytic spurring, ligamentous hypertrophy, and short pedicles compatible with acquired spinal stenosis, most severe at the L4-5 level, as well as diffuse disk desiccative changes. These diagnoses are confirmed by his subsequent private and VA treatment records. The Veteran has submitted several statements and has provided hearing testimony regarding his duties as a lineman. He testified that his duties as a lineman consisted of climbing poles with spiked shoes, laying wire, pulling wire, and anchoring wire. He had to carry heavy equipment to accomplish these tasks and often fell from the poles when his spikes dislodged from the poles due to this extra weight. The Veteran is competent to testify to the duties he regularly performed in service and instances of falling from the poles as this information is factual in nature and capable of lay observation. See Grottveit, 5 Vet. App. at 93. Furthermore, the Board finds that his testimony is credible as it is internally consistent and corroborated by his DD-214, which shows that he served as a construction lineman. See Pond, 12 Vet. App. at 345-47. In a September 2007 statement, the Veteran's private neurosurgeon provided a medical opinion on the etiology of the Veteran's degenerative changes of the lumbar spine. She found that his current condition was due to his history of climbing poles and stringing up line in service as these activities caused him to incur faster than normal degenerative changes in his lower back. Furthermore, she found that this activity and the falls reported by the Veteran likely caused the specific compression deformities and other pathology seen on imaging. She found that his lower back disorder was "without a doubt military related" because of the nature of his problems and the compressive forces involved in falling from the level of height described by the Veteran. Additionally, the Veteran testified to continuous symptoms of back pain since service at his August 2009 hearing, and there are several lay statements of record attesting to the onset of his back problems shortly after discharge from service. These lay statements constitute competent evidence showing that the Veteran complained of back problems after service. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that a layperson is competent to report on that of which he or she has personal knowledge). The Veteran is also competent to testify to his own symptoms of back pain and the onset and progression of these symptoms. Washington, 19 Vet. App. at 368; Hickson, 12 Vet. App. at 253. The lay statements submitted are credible as they are internally consistent, and the Veteran's account of continuously worsening back pain since service is credible it is corroborated by the lay statements attesting to the onset of his back pain after service and a private treatment record dated August 2004 which shows that he reported back problems in the past. See Pond, 12 Vet. App. at 345-47. Therefore, in weighing the evidence of record, and resolving all doubt in favor of the Veteran, the Board finds that the evidence establishes a diagnoses of degenerative disc disease of the lumbar spine; regular participation in activities such as pole-climbing while carrying heavy equipment with frequent falls; and a medical opinion from a neurosurgeon linking the current diagnosis to the Veteran's in-service activities due to the character of his current compression injuries. Furthermore, competent and credible lay evidence establishes continuous worsening symptoms of lower back pain since discharge from active military service. As such, the Board finds no reason to discount the positive evidence for lack of probative value or otherwise. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), Evans v. West, 12 Vet. App. 22, 26 (1998). Therefore, service connection for degenerative disc disease of the lumbar spine is warranted. See 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1167; see also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53. ORDER Service connection for degenerative disc disease of the lumbar spine is granted. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs