Citation Nr: 1304790 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 06-31 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a low back disability, to include a herniated nucleus pulposus. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from November 1951 to November 1953. He served in combat in Korea, and was awarded a Purple Heart. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in June 2008, November 2009, March 2011, and October 2011 for further development. 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 balance of the evidence reflects that the Veteran's back disability, currently diagnosed on most recent VA examination as degenerative disc disease (DDD) and lumbar disc disease with radiculopathy at least as likely as not began in service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, service connection is warranted for a back disability, currently diagnosed as degenerative disc disease (DDD) and lumbar disc disease with radiculopathy. 38 U.S.C.A. §§ 1110, 5107, 1154 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159. 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and To Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the claim for service connection for a back disorder. Accordingly, even if error was committed with respect to either the duty to notify or the duty to assist as it pertains to the matter decided herein, such error was harmless and will not be further discussed. II. Service Connection Generally, applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. 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 the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection, a claimant must generally submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus or relationship between the current disability and the in- service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). Service connection may also be granted if the evidence shows that the condition was observed during service and continuity of symptomatology was demonstrated thereafter, and if the evidence includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997); 38 C.F.R. § 3.303(b). VA is required to accept a combat veteran's statements as to injuries sustained in combat, so long as the statements are consistent with the circumstances, conditions, or hardships of the veteran's service and there no is clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). Where a veteran served continuously for ninety days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms); see also Harvey v. Brown, 6 Vet. App. 390, 394 (1994). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran claims that service connection is warranted for a back disorder. In his original claim filed in December 1965, he indicated he was claiming service connection for shrapnel wounds of his left knee and any other disability incurred in service, later listing his back as having treatment in October 1965. In his August 2005 claim he reported being wounded in Korea, and now had a bad back, but did not elaborate further as to the cause of the back claim in this statement. In his March 2006 notice of disagreement he reported that he began having back pain and lower extremity pain after he was wounded in Korea. Service treatment records show that the Veteran's spine was normal prior to entrance on induction examination of September 1951 and on entrance in November 1951. The report of medical history from September 1951 was negative for history of having used a back brace, bone, joint or other deformity, arthritis or rheumatism. He was wounded in combat in Korea in October 1952, when he sustained a shrapnel wound to his left knee, with the wound treated and the knee casted. The treatment lasted from October 1952 to December 1952 when he was released to full duty. Service treatment records are silent for any back complaints or findings. On separation examination in September 1953 his spine was normal. Slightly less than a year after service, the Veteran was hospitalized from October 1954 to November 1954 for complaints of pain on the sacrolumbar region that made him unable to work. He also had generalized malaise and headaches and was described as ill due to "pull on car." Examination of the spine revealed he could not walk straight due to pain on the sacrolumbar spine, pain on pressure over the sacrolumbar join. X-ray was negative for bone pathology. Treatment included strapping, aspirin and rest. The diagnosis was sacrolumbar strain. The next records of medical record of treatment for lumbar spine problems were from January 1964 and November 1965 showing treatment for a diagnosed syndrome of radicular compression of the sciatic nerve, left. The symptoms described in January 1964 were of irradiating pain to the left leg with similar episodes noted by him some years ago. They were unrelated to bodily exertion. Examination revealed back pain in the lumbar region, muscle spasm and rigidity of the lumbar spine. He also had slight decreased sensitivity of the left leg, but normal reflexes. A February 1966 VA examination of the L knee wound made note of the recent hospitalization and treatment for radicular compression syndrome with pain in the back complained of. A November 1970 VA examination reported a history given of recurrent low back pain since he sustained trauma in the service, with treatment in sick call once, and many time since he was discharged from service. The history of being hospitalized in 1954 with sacrolumbar strain and again in 1964 was noted. He was also noted to have underwent a lumbar laminectomy several months ago for herniated nucleus pulposus (HNP). Presently he complained of low back pain and leg numbness. Examination was significant for a well healed left laminectomy scar, moderate paravertebral muscle spasm and forward bending limited to 30 degrees. No neurological deficit was noted. The diagnosis was residuals of laminectomy for HNP, moderate. No opinion as to the etiology of the lumbar spine disability was given. A November 1976 VA spine examination revealed complaints of recurrent low back pain with history of the laminectomy surgery for herniated disc. Physical examination revealed well healed left laminectomy scar, mild spasm of the parevertebral spine. Forward flexion was limited to 45 degrees. Straight leg raise was also positive at 45 degrees on the left and was 70 degrees on the right. The assessment was status post lumbar laminectomy. The report of a November 1976 VA psychiatric examination noted a history of the Veteran training as a mechanic for heavy equipment post service, with later work at a private company. It was noted that while working for the company he had an accident on June 17, 1976 while lifting a heavy object. He was noted to have been admitted to an industrial hospital in Rio Padres and underwent surgery for discogenic disease. He was presently on Social Security disability. VA treatment records from 1998 to 1999 include a September 1999 record showing chronic low back pain, with relief from physical therapy. VA outpatient treatment records from 2003 through 2011, both in the regular claims file and electronic record, primarily deal with other medical issues besides lumbar spine complaints, with no significant findings referable to the back. The computerized problem list is noted to repreatedly include lumbago and osteoarthritis throughout these records. The records do include a notation of old lumbar surgery scar made in March 2007, and a June 2008 primary care note indicates that Naproxen was used for episodes of back pain, with no other significant findings or history reported. In a July 2011 VA examination, which was later found by the Board to have provided insufficient rationale for its opinion, the Veteran was noted to allege having injured his back in active duty. He claimed the pain was a consequence of heavy lifting in service, but denied any other traumas. He was noted to have weekly flare-ups, and pain in the lumbosacral area radiating down both lower extremities. Examination was significant for spasm, pain on motion and tenderness on both sides of his back. Examination revealed limited motion in all planes with pain on motion, including repetitive. His sensory examination was normal except for decreased sensation on the left side to light touch. X-rays diagnosed L2/4 degenerative disc disease (DDD), generalized spondylosis and DISH. Also diagnosed on X-ray was partial sacrilization L5 towards the left side and convexed mid lumbar dextroscoliosis. The examiner diagnosed lumbar strain and lumbar disc herniation. The examiner opined that these lumbar conditions are less likely than not related to service as the claims folder showed no evidence of any traumas sick calls or LVM conditions during service. He was described as having lumbar pain treatment one year after service but the claims folder was said to state that this was work related since he was already out of service. The examiner did not cite to the source of his finding that the back problem treated one year after service was work related. The report of a January 2012 VA examination diagnosed residuals of lumbar radiculopathy with date of diagnosis said to be 1970, and DDD and lumbar disc disease diagnosed in 1998. The history was detailed with the Veteran reporting service in Korea from 1952 to 1953. He said he bent his back to lift a munitions pack and felt a sudden back pain. He said he was seen at a local dispensary and was found well. No treatment was done. He described recovering without pain until 1 year after he was discharged. He was referred to Vega Baja for treatment and felt better. He was noted to have studied for a heavy machinist's degree and had heavy work. 2 years later he was seen at "FSE" due to lumbar pain every 2-3 years. He said that in 1970 e developed acute pain without improvement. A spinal myelogram was said to find a herniated disc and he underwent laminectomy surgery. He reported being able to walk 3 days post surgery and returned to work after 3 months. He said he was receiving Social Security disability for his back from 1973 until it was discontinued in 1980. The Veteran reported his current complaints were low back pain with bilateral leg pain, and had exacerbations about once a year with severe needle like sensations. He currently treated with Naproxen. His range of motion was limited in all directions, with flexion at 60 degrees and the rest of the movements shown to be 20 degrees. Pain further limited each motion by 10 degrees. Repetitive motion further limited his movements. He had tenderness to palpation over his joint/soft muscles and had moderate lumbar muscle spasms. Sensory and motor examinations were normal except that he had decreased sensation of the left lower leg/ankle and foot/toes. Some atrophy was noted on the left side. Straight leg raise was negative and there was no radicular pain or any other signs of radiculopathy. He did have intervertebral disc syndrome with some incapacitating episodes lasting between 1 and 2 weeks. The X-ray findings from the prior examination were reviewed and recited. The examiner indicated that the claims file and electronic record were reviewed, and recited some of the evidence that was reviewed in the claims folder. The examiner then provided an opinion that the claimed condition was at least as likely as not incurred in or caused by the claimed in service, injury or illness. The examiner provided a rationale that according to the Veteran's history and careful review of the claims file, the lumbosacral strain during service was the initial event which became worse due to the nature of his job and finished with a laminectomy in 1970 with current recurrences. Since the first evidence, the Veteran complained of lumbar pain with left leg radiation which can be the result of a bulging disc secondary to the in-service lumbar strain. The Veteran described exacerbations with details and after multiple injuries due to heavy work, he needed the surgical correction. Presently his symptoms were consistent with degenerative changes of the spine which were most likely related to the aging process and post surgical changes. His current symptoms were mild to moderate. No neurological deficits were noted during examination other than sensory deficit. Based on a review of the evidence and application of reasonable doubt, the Board finds that service connection is warranted for a lumbar spine disorder, currently diagnosed on most recent VA examination as DDD and lumbar disc disease with radiculopathy. The Veteran's lay contentions regarding the history of his lumbar spine injury reported in the January 2012 VA examination are consistent with duties under combat conditions. 38 U.S.C.A. § 1154. Moreover, there is not a lengthy period of time between this injury and the onset of back complaints, recorded a little more than a year after service, that would tend to adversely affect his credibility. Indeed, the Board notes that there is no evidence that clearly contradicts the Veteran's history of in-service back injury. While the record of hospitalization from October 1 to November 1954 noted complaints of pain on the sacrolumbar region that made him unable to work, and made mention of a "pull on car" resulting in general malaise and headaches, described as an illness, it does not clearly specify whether a post service injury to the back (including work-related) actually happened. Other evidence against his claim is the absence of documentation of a lumbar spine injury or disorder in the service treatment records. However, the Board may not reject the credibility of the Veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In support of his claim, the favorable opinion rendered by the January 2012 VA examiner considered the Veteran's lay history of his injury during combat conditions in determining that the claimed spine condition was at least as likely as not incurred in or caused by the claimed in service, injury or illness. This opinion, which was rendered after review of the pertinent evidence and examination of the Veteran, was based on a clear rationale describing the initial in-service back injury as triggering the subsequent sequence of pathologies to the lumbar spine. By contrast, the unfavorable opinion in the July 2011 VA examination failed to fully consider the Veteran's competent and credible lay statements and did not provide adequate rationale, including failing to explain the basis for the opinion that the back disorder treated a year after service in 1954 was due to a work injury, given the lack of definitive evidence of any work injury to the back. Therefore, the Board lends little weight to that opinion. While there is evidence suggestive of a work injury in June 1976 from lifting a heavy object, such injury appears to have taken many place years after service, and many years after he initially sought treatment for back complaints in 1954. Thus, for the reasons described above, the Board concludes that there is a reasonable doubt as to whether the Veteran's current lumbar spine disorder is causally or etiologically related to his period of service. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for a back disability is warranted. ORDER Entitlement to service connection for a back disability is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs