Citation Nr: 1304271 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 12-31 979 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from August 1948 to May 1952. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a January 2012 rating decision, by the Huntington, West Virginia, Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for a back disorder. He perfected a timely appeal to that decision. 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). FINDINGS OF FACT 1. The Veteran's service treatment records (STRs) are not available, having presumably been destroyed in the fire at the National Personnel Records Center (NPRC) in 1973. 2. The competent evidence of record indicates that the Veteran's back disorder, currently diagnosed as degenerative disc disease of the lumbosacral spine with rotary levoscoliosis, is likely related to service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the Veteran's degenerative disc disease of the lumbosacral spine with rotary levoscoliosis was incurred in service. 38 U.S.C.A §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5103, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act. All relevant facts regarding the issue decided below have been properly developed and no further assistance to the Veteran is required in order to comply with the duty to notify and assist. A thorough review of the claims file reveals that the development conducted by VA in this case fully meets the requirements of 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In any event, based on the completely favorable decision discussed below, the Board finds that any failure in VA's duty to notify and assist the Veteran regarding his claim is harmless. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Factual Background. The record indicates that the Veteran served on active duty from August 1948 to May 1952. In July 2007, the National Personnel Records Center (NPRC) certified that the Veteran's service records had been destroyed by a fire. Of record is a formal finding of unavailability of service records, dated in August 2007, in which the RO noted that all procedures to obtain the service records had been correctly followed. All efforts to obtain the needed military information had been exhausted and further attempts were futile. Therefore, it was determined that the service records were unavailable for review. The Veteran's claim for service connection for a back disorder (VA Form 21-526b) was received in November 2010. Submitted in support of the claim were VA progress notes dated from September 2010 to November 2010. During a clinical visit in October 2010, it was noted that the Veteran was complaining of low back pain which is chronic in nature; he stated that it was his belief that the pain stemmed from lifting heavy equipment in the military. Examination of the back was positive for arthritic low back pain for which the Veteran takes an occasional Aleve. The impression was chronic low back pain. In a statement, dated in November 2010, a VA physician informed the Veteran had an x-ray of the low back showed scoliosis with disc space narrowing between several vertebra and degenerative changes around the edges. Received in January 2011 was a statement from the Veteran's wife indicating that they were married in May 1956, four years after his discharge from the military in May 1952; she noted that he has complained of back problems ever since they have been married. She also indicated that, sometimes, the Veteran is unable to lift his feet off the floor to walk. In a statement in support of claim (VA Form 21-4138), dated in January 2011, the Veteran indicated that he injured his back while service in the Army from 1948 to 1952; he served with B Battery, 552nd Gun Battalion. The Veteran related that they had to lift a tracking head which weighed approximately 900 pounds; there were only 4 men to lift that heavy machinery. The Veteran indicated that he went on sick call several times in Germany. The Veteran also reported that he has been treated for back pain since service at Webster County Memorial hospital by Dr. Paul Bennett; he noted that he was treated by the doctor at his private practice but he is no longer in business and he has been unable to obtain those treatment records. Received in April 2011 were treatment reports from Webster County Memorial Hospital dated from November 1981 to December 2010, reflecting treatment for several disabilities, including back pain. Among these records is an x-ray report, dated in November 1981, indicating that the film shows minimal scoliotic convexity towards the left; there was also minimal osteoarthritis spurring over L4. A May 1999 treatment note reflects an impression of osteoarthritis. In December 2002, he was diagnosed with back pain. Clinic notes dated in May 2007 and December 2010 reflect a diagnosis of musculoskeletal back pain secondary to overuse. These records also reflect diagnoses of arthritis. Of record is a VA clinic note, dated in March 2012, indicating that the Veteran was seen by his primary care physician to discuss his low back pain which has been chronic for several years. He stated that his pain has gotten worse over the past few years. The Veteran noted that the pain is mostly in his low back at times radiating down to both hips and legs; he gets some relief when he flexes his spine forward. The Veteran reported that he initially hurt his back when he was in the army lifting heavy objects; he stated that he and 7 other men would frequently be required to lift a 900 pound tracking head. The Veteran also reported that he was frequently required to lift heavy cable with cans full of gasoline. The Veteran indicated that he was seen for complaints of low back pain while in the military and was given pain pills. He stated that his low back pain was quite severe. Following an examination of the back, including x-ray study of the lumbar spine, the Veteran was diagnosed with degenerative disc disease lumbosacral spine with rotary levoscoliosis. The examiner stated that it was his opinion that the Veteran's disc disease of the lumbar spine was just as likely as not called about by his heavy lifting. III. Legal Analysis. The Veteran has asserted in his statements that his claimed back disorder originated from lifting heavy equipment while stationed in Germany. As noted above, it has been certified that the Veteran's service treatment and personnel records have been destroyed in a fire at the National Personnel Records Center (NPRC) in 1973 and have not been located. Under such circumstances, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367(1991). Because the Veteran's medical and personnel records remain absent from the file, the Board's analysis has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind. It is further noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service incurrence will be presumed for certain chronic diseases, to include arthritis, if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to establish direct service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In this case, the Veteran is claiming service connection for a back disorder. The file contains evidence of several currently manifested low back disorders including degenerative disc disease of the lumbosacral spine identified on an radiographic study conducted in 2012. Accordingly, the first Hickson element of service connection - medical evidence of a claimed disability - is satisfied. The Veteran has asserted numerous times that he injured his back lifting a tracking head that weighed approximately 900 pounds while stationed in Germany from 1949 to 1952. He has further explained that he went on sick call on several occasions for back pain and was given pain pills while in Germany. The Veteran's wife also attest to the fact that he has suffered from back pain from the time they were married in 1956, only four years following his discharge from service. The Board notes at this point that the Veteran's STRs are not on record and are presumed to have been destroyed in a fire at the National Personnel Records Center (NPRC); the file shows that the RO made diligent but unavailing attempts to obtain the STRs and surgeon general office records (SGOs) in 2007 and 2012, but all such efforts were unsuccessful. Where the service treatment records were destroyed, the Veteran is competent to report about factual matters about which he had firsthand knowledge, including experiencing pain or injury during service, reporting to sick call, and undergoing treatment. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board finds the statements of the Veteran concerning a back injury in service to be credible. The Board also finds his statements concerning the continuity of back symptoms since service to be credible, and supported by the statement from his spouse, who has provided her own observations of his condition in 1956 and thereafter. The Board notes in this regard that the Veteran and his spouse are competent to report his symptoms both in service (in the case of the Veteran) and after service (in the case of the veteran and his spouse). See Jandreau v. Nicholson, 492 F.3d 1376, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The U.S. Court of Appeals for the Federal Circuit has held that a significant lapse in time between service and evidence of post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed Cir. 2000). In Maxson, however, the Federal Circuit clarified that in evaluating such a lapse in time, VA should consider all of the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts. Id. at 1333 (emphasis added). In this case, the Board notes that efforts to obtain medical records from the private physician who has treated the Veteran through the years has resulted in responses that the physicians are unavailable. In fact, the Veteran has indicated that he attempted to obtain records from his private doctor however, he is no longer in business and he was unable to obtain those records. In short, the Board does not find the lapse in time between service and the first post-service evidence of back disability to be probative in this case. The Board moreover notes that the March 2012 VA clinician expressed the opinion that the Veteran's back problem is related to the referenced back injury in service. In sum, the Board finds the Veteran's statements as to a back injury in service and since service to be credible and supported by the record. The record further shows that he has a current back disorder, and contains a medical opinion which suggests that the current back disorder is related to the claimed back injury. There is no medical opinion evidence against the claim. In light of foregoing, and by resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for degenerative disc disease of the lumbosacral spine with rotary levoscoliosis is warranted. 38 C.F.R. § 3.102; See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for degenerative disc disease of the lumbosacral spine with rotary levoscoliosis is granted. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs