Citation Nr: 1302610 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 11-20 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for degenerative disc disease of the lumbar spine. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from August 1952 to August 1956. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the Veteran's service-connection claim for degenerative disc disease of the lumbar spine. The Veteran disagreed with the RO's determination, and perfected an appeal as to this issue. The Veteran testified at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge at the Muskogee RO in October 2012. A transcript of the hearing has been associated with the Veteran's VA claims folder. The Veteran has submitted additional evidence directly to the Board both at the above-referenced October 2012 hearing and again shortly thereafter. Both submissions were accompanied by a written waiver of consideration of such evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence of record supports a finding that a relationship exists between the Veteran's current lumbar spine disability, degenerative disc disease, and his active duty military service. CONCLUSION OF LAW Degenerative disc disease of the lumbar spine was incurred in active duty military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. A VCAA notice letter was sent to the Veteran regarding his lumbar spine claim in January 2010. The Board need not discuss in detail the sufficiency of this VCAA notice letter in light of the fact that the Board is granting the Veteran's claim below. Any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's full grant of the benefit sought on appeal addressed in this decision. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). Accordingly, the Board will proceed to a decision. Legal criteria In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97; see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In essence, the Veteran asserts that he has a current lumbar spine disability that had its onset in, or is otherwise related to an injury sustained during his period of active duty service. In particular, the Veteran contends that in 1953, while serving at Altus Air Force Base, he slipped off of a truck and hit his back on the curb, causing low back pain from that time to the present day. See the October 2012 hearing transcript, pages 3-6. It is undisputed that the Veteran has a current lumbar spine disability-namely, multi-level degenerative disc disease. See the Veteran's November 21, 2005 MRI report. As such, element (1) of the three-part test for service connection is indeed satisfied. With respect to element (2), in service disease or injury, although the Veteran's service treatment records do not specifically document medical care immediately after a fall in 1953, they do include an April 1956 x-ray report documenting the Veteran's complaints of pain in the right sacroiliac region of his low back and hip. X-rays were negative. At his October 2012 hearing, the Veteran explained that when he first injured his back in 1953, he simply tried to "tough it out," but was advised by his master sergeant in 1956 that since his discharge was approaching, he would want to have his in-service complaints of back pain recorded. The Veteran indicated that this is why his first documented compliant of pain in the low back and hip region is documented at the end of his period of active duty service in April 1956. See the October 2012 hearing transcript, page 4. The Veteran's spouse also testified in October 2012, and pertinently indicated that she and the Veteran were married in 1955, and that the Veteran complained of back pain at that time. See the October 2012 hearing transcript, page 6. In a prior handwritten letter, she also indicated that she and the Veteran dated in 1953 and 1954, and that the Veteran injured his back when he fell off of a flat bed truck in 1953. See the February 2010 handwritten letter from the Veteran's spouse. In support of his claim, the Veteran has also submitted a lay statement from a fellow servicemember, in-service his roommate, who specifically recalled the Veteran injuring his back in 1953 while stationed at Altus Air Force Base. See the December 29, 2009 letter from A.M.C. The Veteran, his spouse of many years, and his in-service roommate are certainly competent to attest to observable symptoms, experiences, and witnessed events. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, the Board finds no reason in the record to doubt the credibility of each of their recollections. Indeed, it appears the Veteran did seek treatment for low back pain in service in 1956, and the circumstances of his claimed in-service injury and this subsequent in-service treatment as described by the Veteran and his spouse are indeed plausible. Based on this lay and medical evidence, the Board resolves all doubt in the Veteran's favor and finds that in-service injury to the low back is in fact demonstrated. Shedden element (2) is therefore satisfied as well. With respect to crucial element (3), nexus or relationship, there is only one medical opinion of record addressing the etiology of the Veteran's current lumbar spine disability. In October 2012, the Veteran's chiropractor, S.S., noted that the Veteran had been experiencing right lower back, hip and leg pain chronically for many years, with initial injury while serving in the Air Force. Upon examination of the Veteran, and review of the Veteran's x-rays, S.S. indicated that the Veteran's "symptoms are due to nerve interference caused by chronic vertebral subluxation and advanced degeneration [of the lumbar spine]." She stated that it was her opinion that the "exam findings are consistent with having had a past trauma that occurred many years ago resulting in his current condition." See the October 24, 2012 letter from S.S. It is clear that S.S. is linking the Veteran's current degenerative disc disease to an old back injury sustained many years ago. The Board notes however that this case is complicated by the fact that the record contains evidence documenting that the Veteran hurt his back not only during his period of active duty service in 1953, but also a second time, immediately following his separation from service. Indeed, records from the Veteran's service as a reservist in 1960 indicate that the Veteran required treatment with a back brace for five months after falling off of another truck in 1957. See the Veteran's March 18, 1960 Report of Medical Examination. Although S.S. did mention that the Veteran sustained a post-service back injury, she did not specify whether she was in fact linking the Veteran's current disability to his initial injury in 1953, as described by the Veteran, his wife and his in-service roommate, or this second 1957 injury documented in the Veteran's post-service treatment records. The evidence of record demonstrates that the Veteran has consistently reported to his post-service treating physicians that his back pain began during his active duty service and has continued to this day. See, e.g., the April 14, 2010 letter from chiropractor L.D.S. [indicating that the Veteran reported pain in his lower back with back spasms beginning in 1954 after falling off a truck]. Attempts to obtain older records from the private physicians who treated the Veteran and performed back surgery in the 1980s have proved futile. In light of (1) the Veteran's competent and credible testimony [to both his treating physicians and VA] that his back pain started when he first fell off of a truck in 1953 and has continued to this day; (2) that such low back pain [in the right sacroiliac region] is noted on an in-service treatment record just prior to the Veteran's separation from service in 1956; (3) that the Veteran's spouse has competently and credibly testified that she recalled the Veteran complaining of back pain as far back as 1955 [two years prior to the Veteran's second back injury]; and (4) that the Veteran's current low back disability has been medically determined to be a result of past trauma many years ago, the Board finds that, at the very least, a showing of continuity of pain symptomatology has been established by the record from the time of the Veteran's period of active duty service to the present day. As such, Shedden element (3) is satisfied by a showing of continuity of symptoms since service, and the benefit sought on appeal is allowed. The Board notes in passing that, although not advanced at the October 2012 hearing, the Veteran's representative has in prior correspondence asserted that the Veteran's second back injury in 1957 occurred while the Veteran was serving on a 15-day period of active duty for training, and that if service-connection cannot be awarded as directly due to the Veteran's initial back injury, it may in the alternative be awarded as due to injury sustained during a period of active duty training. See the Veteran's May 14, 2012 Informal Hearing Presentation, page 1. In light of the fact that the Board is now granting the benefit sought on appeal as due to the Veteran's period of active duty service, the question of whether the same benefit can be awarded as due to an injury sustained during a period of ACDUTRA [active duty for training] or INACDUTRA [inactive duty for training] is moot. ORDER Service connection for degenerative disc disease of the lumbar spine is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs