Citation Nr: 1300139	
Decision Date: 01/03/13    Archive Date: 01/11/13

DOCKET NO.  09-35 170	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for low back disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

C. Lawson, Counsel


INTRODUCTION

The Veteran served on active duty from August 1981 to May 1993.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  A notice of disagreement was received in July 2008, a statement of the case was issued in March 2009, and a substantive appeal was received in September 2009.

The Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge in May 2012, and a transcript of the hearing is associated with his claims folder.  


FINDING OF FACT

The Veteran's current low back strain had its onset in service and has continued since then.


CONCLUSION OF LAW

The criteria for service connection for low back strain are met.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008).  As the claim has been granted, no further notification or assistance is necessary, and deciding the appeal is not prejudicial to the Veteran.

The issue before the Board involves a claim of entitlement to service connection.  Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service treatment records show that the Veteran was treated for lower back pain of 2 weeks duration in February 1984.  He reported that his back began hurting after lifting artillery rounds 2 weeks beforehand.  He had not tried any type of treatment to relieve the pain.  On examination, he had a full range of motion with slight pain on flexion and extension.  The assessment was muscle strain.  An October 1984 screening note of acute medical care notes that the Veteran had had back pain for 1 year, and that he had been seen by a physician's assistant.  He indicated that the problem was recurring.  A service discharge examination report immediate to the Veteran's May 1993 service discharge is not of record.  

On VA Gulf War examination in April 1998, the Veteran reported chronic back pain, especially on the right side, that he reported was due to lifting artillery rounds several years beforehand.  On private evaluation in December 1999, the Veteran complained of recurrent back pain.  He stated that his back was first injured while in the army about 12 years beforehand, and that the pain comes and goes.  He now had right paralumbar pain that radiated to his right buttock.  On examination, he had tenderness and muscle spasms in the right paralumbar musculature.  The diagnosis was low back pain secondary to muscle spasm.  On private evaluation in June 2000, the Veteran complained of back pain and denied any trauma or insult.  On examination, there was tenderness over the right lower lumbar and sacroiliac joint on palpation.  The assessment was low back pain secondary to acute muscle spasm.  

On VA examination in April 2007, the Veteran reported that he twisted his back in service when trying to move artillery rounds, and was told in the field that he had back strain.  Intermittently, periodically, he was on sick call after that.  His back had bothered him a few times while in Italy post-service.  When he had worked in a lumber plant and other jobs post-service, his back would hurt and he would have to take a day off.  On examination, the Veteran had limitation of motion of his lumbar spine, with pain.  An X-ray was negative.  The diagnosis was lumbar spine strain.  The examiner stated that since there were no notes between the 1994 back pain to present (none of the above-mentioned post-service treatment records were yet associated with the Veteran's claims folder), it was hard to establish whether the Veteran's current low back condition was related to service.  

In August 2009, the Veteran's VA physician indicated that the Veteran reported that he had had low level pain since injuring his low back in 1982 after lifting artillery rounds.  On examination, there was tenderness over his right buttock.  The assessment was right sided sciatica from service-related injury.  

During the Veteran's May 2012 hearing before the undersigned, he reported that he hurt his back carrying 200-pound artillery rounds in service.  Something pulled in his back.  He took aspirin or pain medication for it after treatment in October 1994.  Later service duties were not as strenuous.  Shortly after service discharge, he moved to Vicenza, Italy with his wife, who was on active duty.  He received dependent care there at a service facility, but this report is unavailable.  He avoided going on sick call in service as he did not want to be considered a sick-call rider.  

The Board finds that the evidence persuasively indicates that the Veteran developed a chronic low back strain in service and that it has continued since service.  He was treated for low back muscle strain in February 1984, and by October 1984, he indicated the he had had recurrent back pain for a year.  Records since service have continued to show low back strain.  The first evident example of this was on VA examination in April 1998.  The Veteran had not filed a claim at the time (or until June 2006), and in April 1998 and December 1999, he reported chronic back pain that was related to or started in service.  On each occasion, low back muscle problems were found, as had been the case in service.  Lumbar strain was again found on VA examination in April 2007.  The Board finds that a chronic low back strain was present in service, and that the Veteran's testimony regarding continuity since service is credible.  Furthermore, his VA physician indicated in August 2009 that his right sided sciatica was from a service-related injury.  Accordingly, the Board finds that service connection is warranted for chronic low back strain.  Reasonable doubt is resolved in the Veteran's favor.  38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991).


ORDER

Service connection for low back strain is warranted.  



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs