Citation Nr: 1300937 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 08-24 887 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to service connection for a low back disorder with claimed left leg radiculopathy. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from February 1969 until November 1970. This matter initially came before the Board of Veterans' Appeals (BVA or Board) on appeal from September 2006, April 2007 and April 2008 rating decisions from the RO. Although the RO indicated the claim stemmed only from the April 2008 rating decision, the Board notes that relevant service treatment records were associated with the claims file directly after the September 2006 rating decision. The applicable regulation provided that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). See 38 C.F.R. § 3.156(c). The claim was readjudicated in April 2007; however, the records received within one year of that rating decision included a statement from the Veteran's representative and a VA examination of the spine. The applicable regulation provides that evidence received within the one year period prior to the decision becoming final is to be considered as having been received in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2012). In such situations, the rating action will not become final, and any subsequent decision based on such evidence will effectively be considered as part of the original claim. Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). As such, the September 2006 and April 2007 rating decisions did not become final. Accordingly, the claim on appeal stems from the September 2006 rating decision. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The Board previously considered and denied this claim in September 2009. The Veteran then appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2011 Memorandum Decision, the Court vacated the September 2009 Board decision, and remanded the matter back to the Board for development consistent therewith. The case was subsequently returned to the Board for appellate review. In light of the Memorandum Decision, the Board remanded the claim in April 2012. The RO completed the requested development, but continued to deny the benefits sought. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The currently demonstrated low back disorder with related left leg manifestations is shown as likely as not to be due to pattern of injury that began with trauma sustained in a motor vehicle accident during the Veteran's period of active service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by a low back disc disease with left leg radiculopathy is due to disease or injury that was incurred during active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Requirements 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In the present case, letters sent to the Veteran in August 2006, January 2007, May 2008, June 2012, and July 2012 fully addressed all notice elements. The RO has obtained the service treatment records, VA outpatient treatment records and private medical records which were identified by the Veteran. The Veteran submitted private medical records, copies of service treatment records in support of his claim. The Board remanded the appeal in April 2012 to obtain additional service treatment and private medical records. The RO substantially complied with the requested development. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). To the extent that the action taken hereinbelow is favorable to the Veteran, the further discussion as to VCAA is not required at this time. The Merits of the Claim The Veteran seeks service connection for a low back disorder with left leg radiculopathy and specifically argues that his back was injured when he was in a motor vehicle accident in July 1969. Having carefully considered the claim in light of the record and the applicable law, the Board finds that the evidence is in approximate balance so as to warrant the grant of service connection in this case. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury incurred 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). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307 , 3.309. Under section 3.303(b), an alternative method of establishing the second and/or third Shedden elements is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (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. The record reflects the Veteran has a current diagnosis of a herniated disc at L2-3 with radiculopathy as noted by the June 2012 VA examination. As such, he has a current disability. The remaining questions are whether there is evidence of an inservice occurrence of an injury or disease and medical evidence of a nexus between the current disability and the inservice disease or injury. The service treatment records include a July 1969 record that noted complaints of pain in the lower part of back. The Veteran explained he was in an automobile accident that morning when a tire blew out and his car flipped over. The diagnosis was that of low back spasm with minimal limitation of motion. Additionally, the Veteran and another party provided details concerning the accident in statements provided in January 2009. As such, the record clearly reflects that an in-service event did occur. The October 1970 examination performed in connection with the Veteran's separation from active duty described his spine as being normal. The examinations performed in connection with the Veteran's service in the Reserve dated in November 1971, July 1987, August 1988, December 1988 and October 1989 similarly described his spine as being normal. In addition, the Veteran denied having a history of recurrent back pain on reports of medical history completed in November 1971, May 1973, July 1987, August 1988, and December 1988, and September 1989. However, a July 1995 examination for retention purposes noted abnormalities of the spine, including involuntary guarding and paravertebral spasms, positive trigger points, limited flexion and extension, and positive straight leg raise. The summary of defects explained there was a well documented injury to lower back with herniated disc with magnetic resonance imaging test (MRI) at L2-L3 and radicular symptoms. On the accompanying report of medical history, the Veteran reported he had sustained falls at his work place in October 1993 and February 1994. The final element is competent evidence of a nexus linking the low back disorder to the inservice accident. The nexus may also be proven by establishing a continuity of symptomatology. 38 C.F.R. § 3.303. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, as noted, in certain cases, competent lay evidence may satisfy any of the required elements. "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 the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The first post-service treatment record documenting back pain is a February 1980 private chiropractor's report. The Veteran described having a low back ache after heavy exercise and that went away with rest. The private physician indicated that, after an auto accident in 1970, the Veteran had a severe low back pain episode and it was impossible to lift at all for some time following the accident. The physician noted that, after four or five months, there was no more back pain. A VA examination of the spine performed in June 1996 reflected a history of an injury to the lumbosacral spine in October 1993 when he fell down a flight of stairs and broke his tailbone. The Veteran also described falling on ice in February 1994 and indicated this exacerbated his back pain. He reported having progressive pain and weakness since that time. The impression was that of a back injury in October 1993 exacerbated by a fall in February 1994, resulting in herniated discs in the lumbar spine and significant weakness and sensation deficits in the left lower extremity. The Veteran was afforded a general VA examination in July 1996. During this examination, he reported having a history of an injury to the coccyx in October 1993 when he fell while working as a postal carrier. He reported having a second injury in February 1994 while on the mail route that exacerbated his low back pain. The examiner indicated the Veteran had a history of two herniated discs and pain was secondary to that. Neither VA examination provided a rationale for the opinion offered. The private treatment records from various health care providers dated from March 1994 until July 2006 reflect treatment for the low back. Significantly these records report a history of the injury from two work-related falls in 1993 and 1994. None of these treatment records refer to the motor vehicle accident and low back strain during service. These records generally attribute the Veteran's symptoms to the two work-related back injuries. The Veteran was afforded a VA examination in February 2008 to assess the nature and likely etiology of the low back disorder. The examiner reviewed the record, considered the Veterans subjective history of a rollover accident in July 1969, and examined the Veteran. The examiner opined that the Veteran had degenerative changes of the lumbar spine with radiating pain but no evidence of radiculopathy. The examiner indicated the Veteran was released from active duty after a motor vehicle accident in 1969 and was in the Reserve meeting the requirements until 1996. The examiner noted that the Veteran reported to his chiropractor that the back pain had resolved 4-5 months after the motor vehicle accident and further noted the Veteran had been a letter carrier for 21 years and was able to complete that job until a work=related fall resulted in a herniated disk. The examiner explained that the rollover motor vehicle accident was unlikely to cause a herniation or a long term sequelae unless there was a fracture at that time; therefore, the current back condition was less likely than not related to the motor vehicle accident in July 1969. The Veteran submitted a January 2012 statement from a physician who explained that he examined the Veteran in December 2011 and December 2012. Dr. T. reported taking a detailed history and reviewing the medical records, including literature regarding the automobile accident in July 1969 and subsequent back pain. Dr. T. indicated that the Veteran continued to struggle with constant low back pain that the physician felt was attributable to the automobile accident. He explained a lumbar MRI or computed tomography (CT) scan was not performed until September 1994 and indicated a disc herniation at L5/S1. While Dr. T could not say absolutely that this was a result of the July 1969 accident, he felt there was a strong correlation as the clinical symptoms started after this accident and worsened with age. He added that the automobile accident in 1969 either directly caused the herniation or substantially weakened the disk thereby setting the path for herniation in the future. The Veteran was afforded another VA examination in June 2012 to assess the nature and likely etiology of the claimed low back disease. After reviewing the record, considering the Veteran's subjective history and examining the Veteran, the examiner opined that the low back condition was less likely than not incurred in or caused by the claimed inservice injury. The examiner explained that the records reflected the Veteran was injured in February 1994 on his job as a letter carrier. The Veteran further indicated he worked for the postal service for 23 years as a letter carrier prior to the injury in 1994 and was able to walk seven miles at work and then go home and run 3 miles every other day. He was able to continue duty in the Reserve until 1996. The examiner added that, if the Veteran had an injury with a herniated disc while in service or prior to his work injury, he would not have been able to carry out the physical work he did for 23 years after service. The examiner concluded the herniated disc and associated radicular pain were the result of acute injury when the Veteran fell working as a letter carrier in 1994. The Veteran also submitted lay statements in support of his claim. A statement of the Veteran's mother indicated that he had been injured in a car accident when the car turned over several times in July 1969. She related that he injured his back in the accident and had had pain in the back since that time. Under the "benefit-of-the- doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). Significantly, the mandate to accord the benefit of the doubt is triggered when the evidence has reached a stage of balance or relative equipoise. In the present case, evidence against the claim includes the June 1996, July 1996, February 2008 and June 2012 VA examinations that concluded the current back problems were related to the post-service work-related injuries, private records relating the back pain to the October 1993 and November 1994 work-related injuries and the absence of any treatment records dating from time of the Veteran's separation from service in November 1970 until when symptoms were first documented for the back in 1980 (nearly 10 years after the Veteran's separation from service). Here, the June 1996 and July 1996 VA examinations and the private treatment records fail to include a detailed rationale for the opinions rendered. See Black v. Brown, 5 Vet. App. 177, 180 (1993); see also, Kightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions). The February 2008 and June 2012 VA examinations included a rationale but did fully address the Veteran's assertions of having continued pain since service. There is also significant evidence in support of the claim. For example, the January 2012 statement of Dr. T. concluded that the injury in service either directly caused the current symptoms or significantly weakened the back to predispose him to suffer a disc herniation later on. Although Dr. T. could not say "absolutely" that the back problems were related to service, he did indicate there was a "strong correlation" and concluded it either directly caused the current symptoms or indirectly led to the herniation which caused symptoms. Additionally, the Veteran and his mother have provided statements as to the continuity of pain since service. In this regard, the Veteran and his mother are competent to testify as to his symptoms, including pain, as it is something of which they would have personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Thus, the Board finds the Veteran's testimony of pain during service and continued pain after service to be credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although there is a gap in the actual treatment records, there is nothing in the record that specifically contradicts the Veteran. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). The 1980 private record noted that the back pain resolved, but also reported the Veteran continued to experience pain with use. Similarly, although the private treatment records from 1994 do not mention the earlier inservice automobile accident, none of the records reflect a denial of any prior accident or injury. Thus, in reviewing the entire record, the Board finds the evidence to be in relative equipoise in showing that the Veteran's current low back disability manifested by degenerative disc disease as likely as not had its clinical onset due to the documented injury that he sustained during his period of active service. In resolving all reasonable doubt in the Veteran's favor, service connection for a low back disorder with left leg manifestations is granted. ORDER Service connection for a low back disorder with left leg manifestations is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs