Citation Nr: 1306069 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 07-27 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1978 through June 1995, and had more than 17 years of prior active duty. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Salt Lake City, Utah Regional Office (RO). An RO hearing was held in May 2007. In December 2010 and in May 2012, this matter case was remanded for additional development (and to complete what was previously sought. FINDING OF FACT The Veteran is shown to have a recurrent lumbar strain which became manifest in service and has persisted. CONCLUSION OF LAW Service connection for lumbar strain is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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. 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist oversight is harmless. Legal Criteria, Factual Background, and Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). One method of substantiating a claim of service connection is by showing that a chronic disability became manifest in service and has persisted. Chronicity may be established by showing continuity of symptomatology during service and after discharge from service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system), with an emphasis on the evidence that is 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. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the 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 Veteran contends, in essence, that he has a chronic low back disability that had its onset in service and has persisted since. The evidence of record, including three VA examinations, show that the Veteran suffers from chronic back strain. It is not in dispute that he currently has such disability. The Veteran's service treatment records (STRs) show that in January 1979, he was seen for complaints including backache (related to a viral syndrome). In August 1983, he fell off a ladder and was seen for complaints of low back pain. There was no swelling, edema, or deterioration of the back, but he was unable to bend his back very much. The assessment was muscle strain. He was seen twice more that same month for follow-up of the back pain. The impression was resolving muscle/back strain; he was to avoid any heavy lifting. He was seen again for complaints of low back pain in July 1985. The impression was muscle strain (sustained playing rugby) In November 1986, he was seen for a complaint of right side low back pain which had persisted for a couple of months (the history of injury in 1983 in a fall from a ladder was noted). He was again seen in August and September 1988 (when the assessment was low back pain with a strain); the provider observed that the Veteran needed to have his back checked for nerve damage. No pertinent complaints or findings were noted on March 1995 service separation examination. The spine was normal on clinical evaluation. The Veteran has not identified any post-service treatment for his back (he has reported self-treatment with over-the-counter pain medication).. On June 2007 VA examination, the Veteran reported that the lumbosacral spine began to hurt in 1984 (sic) when he fell off a ladder at the naval station in Key West. He related that initially the only treatment he received was ibuprofen and a light duty profile; he indicated that over the years, self-treated his low back problems with ibuprofen and bed rest. He further indicated that in the last five years, the pain had increased and was rated a constant 3 (on a scale of 0-10), with flare-ups rated at 8/10. He noted that the problem was aggravated by twisting, sleeping on the side, or turning incorrectly. Pain was alleviated by ibuprofen. He also described a sciatica-type pain on the left side, "all the way down." Physical examination of the lumbar spine found no muscle spasm; but there was tenderness, particularly in the right sacroiliac region, and with palpation of the area (which included down the right buttock and thigh). Range of motion studies revealed some discomfort and referred pain with the studies. It was noted that the Veteran was able to heel-toe and tandem walk, Romberg is negative, and motor, strength, sensation and reflexes are normal in the lower extremities. X-rays showed mild anterior marginal osteophytes at L5 and the T12/L1 disc space. The diagnosis was mild lumbosacral strain. On January 2011 VA examination, the examiner noted the Veteran's history of a fall from a ladder in service, and also that he did not have a record of any documented complaints of, or private treatment for, ongoing back problem from service to the present. He reported constant pain and flare-ups of really bad pain (that lasts for four days at a time) twice a year, aggravated by twisting wrong and bending. He relieved the symptoms by stretching, resting, heat on the back, and ibuprofen. After physical examination the diagnosis was mild, chronic lumbar strain. The examiner (a physician's assistant) opined the Veteran's low back condition was less likely than not caused by or related to his episodes of lumbar strain in service. He explained that there was documentation of an ongoing back problem from the time the Veteran left service until the present, and while the Veteran has had intermittent lumbar strains, such did not mean that he had a chronic ongoing back problem. Because the January 2011 examiner did not account for the Veteran's accounts of continuity of symptoms or acknowledge the apparently ongoing nature of the complaints/treatment in service, the Board found the examination (and in particular the nexus opinion offered) inadequate for rating purposes, and remanded the matter for another examination (by an orthopedic specialist) to secure an adequate nexus opinion. On June 2012 VA examination (again by a physician's assistant) the examiner noted the Veteran's history of a fall from a ladder in service and treatment for back complaints in service. A diagnosis of back strain with onset in August 1983 was given. The examiner did note the 2007 imaging studies, which revealed mild anterior marginal osteophytes at L5 and T12/L1 disc space. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The stated rationale for the opinion included that there was no X-ray evidence of back trauma in service; that there was no documentation of postservice continuity of symptoms; and that "lumbar strain although frequent and ongoing is not of itself a chronic condition". The Board initially finds that the June 2012 VA examination and nexus opinion is (as was the January 2011 VA examination and nexus opinion) inadequate for rating purposes. Specifically, there is no requirement for establishing service connection that back trauma needs to be corroborated by X-ray findings; the examiner failed to address adequately the Veteran's lay accounts of postservice ongoing back problems which he self-treated with over-the-counter pain medication, heat, and rest (which accounts the Board, incidentally, finds consistent with the factual record and credible); and lumbar strain (to include of itself) is recognized by VA as a chronic disability (see 38 C.F.R. § 4,71a, Code 5237). Consequently, while physical examination in June 2012 is adequate to establish that the Veteran has lumbar strain (which the examiner acknowledges began in 1983), it lacks probative value regarding the matter of a nexus between the diagnosed lumbar/back strain and the Veteran's service and injury, complaints, and treatment therein. As was noted above, one method of substantiating a service connection claim is by showing that a chronic disability became manifest in service. Here, the record shows the Veteran has a diagnosis of lumbar strain (which VA recognizes as a chronic disability). It also shows that the Veteran sustained more than one (ladder fall/and rugby injuries) back injury in service and was seen in service for recurring complaints which appear to have been related to the documented injury. Finally, the Veteran's lay accounts provide (which the Board finds no reason under the circumstances shown to find not credible) evidence of postservice continuity of symptoms. All of the requirements for establishing service connection are met. Service connection for lumbar strain is warranted. ORDER Service connection for lumbar strain is granted. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs