Citation Nr: 1237630 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 08-31 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran served on active duty training (ACDUTRA) with the United States Army Reserves (USAR) from August 1987 to December 1987 as well as on active duty from October 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In February 2009, a hearing was held before a Decision Review Officer at the RO. In September 2010, a Travel Board hearing was held before the undersigned. Transcripts of these hearings are associated with the Veteran's claims file. In August 2012, the Board sought a Veterans Health Administration (VHA) advisory medical opinion. FINDING OF FACT The weight of the evidence establishes the fact that the Veteran's low back disorder became manifest in service and has persisted since that time. CONCLUSION OF LAW Service connection for a low back disorder is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. However, inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on this matter, since any error in notice or duty to assist omission is harmless. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. (The Virtual VA file does not contain any evidence pertinent to the matter at hand.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. A disorder may be service connected if the evidence of record shows that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third elements discussed above. See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Service connection may be granted for [a disease] initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d). Specifically with respect to Reserve members, diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends that her claimed low back disorder began in 1991 and is related to the repeated in-service heavy lifting required with her duty assignment. During her September 2010 hearing, the Veteran explained that she did not claim any back injury upon separation from active duty because she was told her duty would be extended and she was eager to get home to her children after her period of active duty. The Veteran's assertions of low back injury in service and continued low back impairment since service are supported by credible statements from her fellow service members, family, friends and co-workers. Her service treatment records (STRs) show complaints of low back pain not due to trauma in October 1987. A November 1990 treatment note details complaints of low back pain for the last month and findings of full range of motion. In a May 1991 Southwest Asia Demobilization/Redeployment Medical Evaluation report, the Veteran complained of muscle failure in her back as well as recurrent low back pain with pain in both legs. Her DD Form 214 lists her military occupational specialty (MOS) as Petroleum Supply Specialist. VA treatment records dated from 2007 to 2010 reflect continued complaints of low back pain and radiating pain to the lower extremities, treatment with manipulation and steroid injections, and findings of chronic muscle strain in the low back, sciatica, foraminal stenosis, lumbar radiculopathy, and degenerative disk disease. While a February 2007 VA X-ray report shows normal lumbosacral spine findings, VA X-ray and MRI reports in January 2008 show a minimal amount of narrowing of the L5-S1 intervertebral disc spaces, an extradural defect at the L4-5 level consistent with protrusion, and a focal area increased signal consistent with annular tear. Private chiropractic treatment records dated in February 2009 detail complaints of back and lower extremity pain and findings of lumbar segmental/somatic dysfunction, lumbago, and sciatica. An October 2009 VA spine examination report shows an impression of right L4-5 disk herniation with radiculitis. The examiner indicated that the Veteran's service records supported that she had low back pain while on active duty in the military. However, the examiner noted that he was unable to establish chronicity or continuity of symptomatology, as there was an absence of medical documentation regarding the Veteran's low back complaints from when she was in the military in 1991 and first sought medical attention in 2007. He reported that he was unable to resolve this matter without resort to mere speculation. A March 2011 VA spine examination report shows diagnoses of right L4-5 disk herniation with radiculopathy, spondylosis at L4-5, and anterior osteophyte, L4-5 and L5-S1. In a July 2011 addendum to the March 2011 VA spine examination the examiner noted that the Veteran's assertions of low back pain while on active duty were supported by her STRs; but the examiner asserted that he continued to be unable to relate her current back complaints to her complaints in service without resorting to mere speculation because there was no medical evidence showing continuity of symptoms or treatment for low back complaints until 2007. In August 2012 the Board sought a VHA medical opinion in this matter. In the VHA medical opinion, received in October 2012, a VA attending neurosurgeon opined that "it is at least as likely as not that the [Veteran's] low back disorder as currently diagnosed had its onset during her military service." This opinion was supported by a detailed recitation of the history of the Veteran's claimed low back disability, considered the statements provided by her family and coworkers and cited to medical literature. The Board finds that the evidentiary record supports the Veteran's allegation that her current low back disability is related to her low back complaints in service. The Board finds that the VHA medical opinion is the most probative evidence in the record regarding a nexus between the Veteran's current low back disability and her low back complaints in service. The VHA medical opinion is persuasive because is accompanied by the most detailed explanation of rationale, cites to clinical data and refers to medical literature, reflects familiarity with the entire record, shows consideration of the competent lay statements of the Veteran and her family and coworkers, and it is by a neurosurgeon (who by virtue of training and experience is eminently qualified to offer it). Significantly, there is no medical opinion evidence to the contrary. Notably, the opinions of the VA spine examiners in 2009 and 2011 do not show that appropriate weight and consideration was afforded to the competent statements from the Veteran (and her family and coworkers) regarding continuity of symptomatology (that is the Veteran's assertion that she has continued to experience low back pain since her discharge from active duty service); as such, the medical opinions are considered to be inadequate for rating purposes. See 38 C.F.R. § 3.159(a)(2); see also Layno v. Brown, 6 Vet. App. 465, 469 (competent lay evidence is defined as any evidence "not requiring that the proponent have specialized education, training or experience," but is provided "by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person"). Here, it is undisputed that the Veteran has a current lower back disability. The evidence of record also shows that the Veteran began experiencing back problems in service and that she has continued to experience back pain since service. Finally, the only medical opinion of record to reach a conclusion as to the etiology of the Veteran's current back disability found that it was at least as likely as not related to the back pain she began experiencing in service. As such, resolving all reasonable doubt in her favor, as is required by the law, the Board concludes that the competent evidence of record supports the Veteran's claim, and service connection for a low back disorder is warranted. ORDER Service connection for a low back disorder is granted. _________________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs