Citation Nr: 1305709	
Decision Date: 02/19/13    Archive Date: 02/27/13

DOCKET NO.  10-24 126	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to service connection for a lumbar spine disability. 


REPRESENTATION

Appellant represented by:	David S. Wight, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. L. Wallin, Counsel


INTRODUCTION

The Veteran served on active duty from May 1968 to January 1969.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  The RO, in pertinent part, denied a claim for degenerative changes of the lumbar spine.  The Board has recharacterized the issue on appeal as it appears on the cover page of the instant decision to afford the Veteran the broadest scope of review.  

The Veteran presented testimony before the Board in October 2012.  A transcript of the video conference hearing has been associated with the claims folder.   


FINDINGS OF FACT

Affording the Veteran all reasonable doubt, a lumbar spine disability, to include degenerative changes of the lumbar spine, was incurred during his active military service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for a lumbar spine disability have been met.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R.
§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1);  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 

To the extent that the action taken herein below is favorable to the Veteran, the Board finds that further discussion of VCAA is not required at this time.  

II. Criteria

Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  That an injury occurred 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).  Service connection may also be granted for any disease 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).

Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of at least 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in 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; 38 C.F.R. §§ 3.307, 3.309.  

III. Analysis

The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which contains VA outpatient treatment records dated between July 2009 and January 2012 considered by the RO in the February 2012 supplemental statement of the case.  Additional VA outpatient treatment records added to Virtual VA in August 2012 are not pertinent to this claim.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Veteran contends that he is entitled to service connection for a lumbar spine disability.  Specifically, he testified that during training at Fort Benning, he was thrown from a truck when it made a sudden turn.  He further testified that he landed on his back and experienced pain upon hitting the ground, for which he sought treatment and was hospitalized.  The Veteran asserts that he has suffered from back problems since his discharge from service.  

The Board has considered the Veteran's contentions in light of the evidence of record and the applicable law,  and finds that the weight of such evidence is at least in approximate balance, and the Board therefore will grant service connection for a lumbar spine disability, namely degenerative changes of the lumbar spine, on a direct causation basis.  38 U.S.C.A § 5107(b).

In this regard, service treatment records show that the Veteran complained of back pain on three occasions in July 1968.  An entry dated July 18, 1968, showed complaints of low back pain with slight spasms.  In July 1968, he was hospitalized because of pleuritic left anterior chest pain and infiltrate overlying the apex of the heart of the lingular area on chest x-ray.  He was being evaluated for tuberculosis.  During his hospital course, the Veteran complained of low back pain, though physical examination consistently revealed no abnormality.  

The Board would note at this juncture that during his hospital admission the Veteran reported having sprained his back playing football in high school.  The Veteran now denies having made this statement.  On his April 1968 enlistment examination the Veteran denied recurrent back pain and the corresponding physical examination was negative for lumbar spine disability.  Since a lumbar spine disability was not noted on enlistment examination, there has been no clear and unmistakable evidence that demonstrates that a back injury or disease existed before acceptance and enrollment in service.  38 U.S.C.A. § 1111.  Thus, a lumbar spine disability was not considered pre-existing.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).  

After his discharge from the hospital, the Veteran again complained of back pain in October 1968.  He reported back trouble on his October 1968 separation medical history, but the corresponding physical examination was negative for a disability of the spine. 

As there was no diagnosed chronic back condition during service, a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  In the instant case, the Board believes this has been met.  

Post-service, VA outpatient treatment dated in September 2008 show the Veteran complained of low back pain.  He informed treatment providers that he felt his low back pain was directly related to military service.  No other information was provided as to service incurrence except that he stated he had a liver biopsy in service, as well as spinal tap, for reasons unknown to him.  X-rays taken in September 2008 revealed minimal degenerative changes of the lumbar spine.  This is clearly outside the one year presumptive period for arthritis.  38 C.F.R. §§ 3.307, 3.309.

A September 2009 opinion from the Veteran's VA physician noted that she had treated the Veteran since September 2008.  She indicated the Veteran had longstanding back pain.  Lumbar spine radiographs revealed minimal degenerative changes of the lumbar spine.  She stated that she reviewed the service treatment records and noted that he was evaluated for low back pain while on active duty in July 1968 and October 1968.  She opined this was proof of an in-service occurrence and thus, it was as likely as not that the low back pain he was currently experiencing, was related to a service-connected condition.

In contrast, the December 2009 VA examiner, after reviewing the claims folder and examining the Veteran, opined musculoligamentous injury to the lumbar spine with minimal degenerative changes manifested by osteophytes was less likely as not caused by or a result of the in-service injuries and were likely not the primary reason for his back pain.  The examiner noted that the Veteran had a primarily musculoligamentous injury to the lumbar spine.  He had normal disk space but some osteophytes over the anterior aspect of the vertebral bodies.  These manifestations were not considered the primary cause of his back pain and were an indication of stress on the spine, which occurred normally and considered an incidental finding.  The examiner further noted that radiographic osteophytes were frequently found in people of his age regardless of prior history of injury.  He concluded there was no rationale that would ascribe these osteophytes to his injury in October 1968.

VA outpatient treatment records dated between 2009 and 2012 show continued treatment for low back pain.  Entries dated in November 2011 and January 2012 reveal the Veteran reported chronic low back pain after falling off a truck 40 years prior.  

As noted at the outset, the Veteran presented testimony before the Board in October 2012.  He testified that he injured his back when he was thrown from a truck after it made a sudden turn.  He further testified that he experienced pain when he landed on his back.  The Veteran stated that he sought treatment within eight to nine months of his discharge from service.  He indicated that he tried to seek treatment with VA in 1969, but that they did not want to do anything at that time.  He additionally stated that he saw a private provider in 1970 who gave him medication and exercises, but they were difficult to follow because he was very young.  He also testified that it was difficult to continue treatment because he was discriminated against for being a Vietnam Veteran.  The Veteran testified that he has suffered from back problems since his discharge from service.  

The Veteran is clearly asserting that he had continued or ongoing problems with his back/lumbar spine since service and these statements are found to be credible for the purpose of establishing a continuity of symptomatology following service.  38 C.F.R. § 3.303(b); Layno v. Brown, 6 Vet. App. 465 (1994); see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  Significantly, service records document treatment for low back pain on multiple occasions, complaints of low back pain were reported upon separation, he testified that he sought treatment within a year of his discharge, and he testified that has suffered from back problems since his discharge.  The Board has no reason to doubt this Veteran's veracity.  Thus, the Veteran's current assertions of his having had chronic back problems since service are consistent with his own actions and the overall record.

The Board is cognizant that the December 2009 VA examiner opined that the Veteran's current back problems were not related to service, but that osteophytes seen on x-ray were due to the aging process and not an October 1968 injury; however, the Board finds the rationale flawed.  The examiner made no reference to the multiple complaints of back pain in service, not only in October 1968, but July 1968 as well.  Further, sufficient weight was not given to the Veteran's credibility in terms of service incurrence or ongoing complaints.

Based on the evidence of record, there can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim.  Specifically, ordering another VA examination; however, 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); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).

The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance.  In this matter, the Board is of the opinion that this point has been attained.  Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993).  Hence, service connection for a lumbar spine disability, including degenerative changes, is warranted.


ORDER

Entitlement to service connection for lumbar spine disability is granted. 



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs