Citation Nr: 1302989 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 06-14 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1965 to November 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Baltimore, Maryland RO. The Veteran requested a hearing before the Board. Such hearing was scheduled to take place in February 2009; by January 2009 correspondence he withdrew the hearing request. In March 2009, July 2010, and in April 2012, the matter was remanded for additional development. In November 2012, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). FINDING OF FACT The Veteran's current low back disability is reasonably shown to be related to a low back injury during his service. CONCLUSION OF LAW Service connection for low back disability is warranted. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION A. 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. B. Legal Criteria, Factual Background, and Analysis 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; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially 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). 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). A disorder may be service connected if the evidence 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). 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 Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. 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. [The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present there are no additional documents pertinent to this appeal in Virtual VA.] The Veteran alleges that his current low back disability is due to an injury he sustained in service. His service treatment records note that he fell from a truck in service in August 1967, sustaining back and wrist injuries. X-rays at the time were normal. On service separation examination, clinical evaluation of the spine was normal. The Veteran's claim of service connection for a low back disability was received in 2003. He has testified that he has received treatment for the claimed disability from 1971 (i.e., since 3 years after service); several lay statements from other witnesses describe the Veteran experiencing symptomatic back problems since the early 1970s. The Veteran has also submitted copies of doctors' notes requesting that he be excused from strenuous activities at various times between 1982 and 1991 for diagnoses that included back strain and "lumbar degenerative disc disease" (in September 1982). The earliest postservice treatment records in the file concerning low back symptoms and diagnoses feature records dating from 1982 and 1987. August 1982 X-ray reports from these years show levoscoliosis of the lumbar spine at a L4-5 junction. A medical report from June 1987 shows that when the Veteran was evaluated for back pain he described an injury in which he fell from a truck; VA adjudicators have interpreted the handwritten note as documenting such an injury "4 years ago" in 1983, however the Board reads the handwritten note as probably referring to the documented in-service injury "21 years ago." There is otherwise no apparent indication of trauma to the Veteran's low back between the 1967 in-service injury and a 1996 motor vehicle accident. The Veteran suffered documented back symptoms following a motor vehicle accident in April 1996; records from that time show that the Veteran was tender at L4-L5. He underwent lumbar surgery in 1997 after diagnostic imaging revealed disc disease at L4-L5 and nearby. He has submitted a statement connected to an arbitration proceeding indicating that because of the lapse in time between the April 1996 accident and the 1997 surgery it was determined that the surgery was unrelated to the motor vehicle accident. Prior to November 2012, when the Board sought a VHA advisory opinion, there were medical opinions of record from five different medical professionals addressing the question of whether the Veteran's current back disability is etiologically linked to his injury in service (some of the medical professionals have authored more than one letter with essentially the same opinion over the years). However, none of the opinions of record was adequate to resolve the key question for appellate review. Four private medical doctors involved in treatment of the Veteran's back disability at various times have authored opinions attributing the current back disability to service. These private medical opinions reflect a less than complete familiarity with the facts and do not account for all of the factual data now available. None makes reference to the Veteran's 1996 motor vehicle accident and associated back injury. The opinions rely upon the Veteran's account of remote events and/or recollections of records that are no longer available and were last seen in the remote past. These private opinions, as well as the most recent VA examination report (which presents the opinion that the current disability is unlikely related to service) were prepared with an incomplete factual record prior to recent development which added a number of pertinent medical records to the claims file (including medical records pertaining to the low back from the 1980s and 1990s). In November 2012, the Board requested a medical advisory opinion in this matter from VHA. The January 2013 VHA opinion received in response, prepared by a board-certified orthopaedic surgeon, discusses the pertinent information of record and also the general medical principles for consideration of this matter; the opinion explains that determining the etiology of the Veteran's current back disability in light of the facts shown is a complex matter. The opinion expresses that "the progression from muscle strain to disc disease and facet disease does occur. This is a continuum and the progression is not predictable and we don't understand why it occurs in some situations and not in others." The opinion states that "[t]he progression is a very complicated and variable process from individual to individual, but one can see definite patterns when looking at large groups." The authoring orthopaedic surgeon expressed that "it is often not possible or helpful to separate out the various anatomical structures involved," and "[i]n this case, x-rays or an MRI before the truck accident would have been helpful, but I think the chronic nature of the disc degeneration as reported on the MRI of the lumbar spine suggests that this process predated the accident." The VHA expert explained that it was not possible to determine what damage the truck accident would have caused to a normal lumbar spine in contrast to the Veteran's previously injured spine, even with consideration of the biomechanics of a rear end collision. The VHA orthopaedic surgeon concludes: "With the information available, in my opinion, it is at least as likely as not that the chronic lumbar disability is related to the documented back injury in service." On longitudinal review of the aforementioned evidence, the Board finds that the evidence reasonably supports the Veteran's claim that his low back disability is causally related to the injury he suffered during military service. The service treatment records document an in-service back injury in 1967, with symptoms at the same location along the spine (L4-L5) as would later develop diagnosed disc disease requiring surgical treatment in 1997. Postservice evidence clearly shows that back strain and degenerative disc disease were diagnosed at least as early as in 1982, with lay testimony indicating observable symptoms of back disability dating back to the early 1970s. The Veteran's testimony over the years has been reasonably consistent (including a documented statement made to a medical professional in June 1987, many years prior to filing a claim for VA monetary benefits). Four private medical doctors involved in the treatment of the Veteran's back disability at various times have attributed the current back disability to his military service. Although these opinion may overlook the occurrence of a post-service 1996 motor vehicle accident and associated back injury, none of the medical opinions of record to the contrary is adequately probative (because none was prepared based on a complete factual record, with all pertinent information concerning the Veteran's back disability prior to the 1996 injury). Most significantly, the new January 2013 VHA advisory opinion, informed by review of the complete record and expressly accounting for the intervening motor vehicle accident, probatively establishes that it is "at least as likely as not that the chronic lumbar disability is related to the documented back injury in the service." The Board finds that the January 2013 VHA advisory opinion's discussion of analysis presents an adequate and persuasive rationale explaining the applicable medical principles and the pertinent facts. Resolving remaining reasonable doubt in his favor, as is required by the law, the Board concludes that the competent evidence of record supports the Veteran's claim, and that service connection for a low back disability is warranted. ORDER Service connection for low back disability is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs