Citation Nr: 1306732 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 09-38 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Dr. C. H. Thornton, Jr., Attorney WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to August 1980, June 1981 to August 1981, and from May 2002 to March 2003. This matter comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a low back disability. The Veteran testified at a videoconference hearing before the undersigned Veterans law Judge in October 2010. In September 2011, the Board remanded this matter to the RO, via the Appeals Management Center. An April 2012 supplemental statement of the case continued the denial of the claim. In July 2012 the Board received additional relevant evidence. The evidence, consisting of a VA examination report has not been considered by the RO in the first instance, nor has the appellant submitted a waiver of initial RO consideration of such. Nevertheless, in light of the Board's favorable action in this matter the Veteran has not been prejudiced by adjudication of the claim. FINDINGS OF FACT The Veteran has a current low back disability, diagnosed as degenerative joint disease of the lumbar spine that is etiologically related to injuries sustained while on active duty. CONCLUSION OF LAW The criteria for service connection for degenerative joint disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. In June 2007 correspondence, VA advised the Veteran of the criteria for service connection. VA has also assisted the Veteran by obtaining VA outpatient treatment records. The Veteran underwent a VA examinations in January 2009 and January 2012, and a supplemental VA opinion was rendered in July 2012. Finally, as noted, the Veteran and his spouse set forth their contentions during the hearing before the undersigned. The Veteran's attorney has submitted additional argument pertinent to the appeal. In this case, the Board is granting the full benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. The Veteran contends that a current low back disability is the result of an injury that occurred during service in Afghanistan when his construction vehicle hit a mine. He describes continuous low back pain since the event. He does not attribute a low back disability to either of his earlier periods of active duty service. His wife testified that she was informed of the injury by the Veteran and that she observed him with low back pain ever since discharge from service. The Veteran was stationed in Afghanistan from February 2002 to January 2003. A DA Form 638, Recommendation for Award, confirms that during that time, a grader operated by the Veteran hit a mine and blew the right tire. The service medical records show treatment for rectal pain. In January 2003, the Veteran related concerns regarding low back pain and reported treatment for 30 days for an infection of the prostate. He was referred for a genitourinary consult. On examination in February 2003, the Veteran was seen for rectal pain. The clinician noted proctitis versus hemorrhoids. The Veteran also reported chronic intermittent low back pain for which he had been placed in quarters. The clinician noted rectal pain and requested a GI/urology consult. During a service separation examination in February 2003, the Veteran reported a history of low back pain. A physical examination noted an abnormal evaluation of the lower extremities but normal evaluation of the spine. No low back disability was diagnosed. VA treatment records in April and May 2003 show complaints of pain in the rectum up to the tailbone. The Veteran was treated with antibiotics. The clinician noted proctalgia that appeared to be resolving. A VA examination in October 2003 noted reports of rectal pain but found no evidence of any rectal disability. In a November 2003 medical report, the Veteran reported taking medication for rectal pain and a knee injury incurred in a mine explosion. Thereafter VA medical records show continued complaints of back pain and rectal pain. Lumbar spine MRIs in October 2003, February 2005 and March 2007, revealed no abnormalities. An April 2007 MRI of the lumbar spine showed broad-based L4-5 disc bulge or protrusion eccentric to the left, resulting in moderate left and mild right L4-L5 foraminal stenosis. At that time, the Veteran complained of pain in his tailbone that started in 2002. During VA treatment in June 2007, the Veteran described a history of low back for the past five years. In an August 2007 letter, private physician Dr. G. S. stated that he first treated the Veteran in March 2004 for other complaints and was first made aware of low back complaints during a visit in March 2005. At that time, the Veteran attributed his low back symptoms to a mine injury in Afghanistan. In June 2008, the Veteran underwent L4-L5 discectomy and interbody fusion with pedicle screws and cages. The Veteran was afforded a VA spine examination in January 2009. The examiner opined that the Veteran's low back disability, diagnosed as post-operative lumbar spine fusion, was not due to the in-service landmine blowing incident because the April 2007 MRI showed a new disc condition as opposed to a decade old injury. The Board remanded this matter in September 2011 because it did not appear that the VA examiner considered the lay history describing continuity of low back symptoms since service. Another VA examination was conducted in January 2012. Following a physical examination, the examiner diagnosed degenerative joint disease of the lumbar spine, post spinal fusion. The examiner opined that the current low back disability was less likely than not caused by the in-service injury. The examiner noted that the initial complaint following the mine injury in service was for rectal pain and not for a low back condition. The examiner noted that back pain "started some time later." In July 2012, the same VA examiner submitted an addendum which opined that the current low back disability was at least as likely as not incurred in or caused by the claimed in-service injury. The examiner believed that the complaints of rectal or low back pain in service were a manifestation of a low back disability. The examiner also acknowledged that the Veteran was continuously treated by VA following discharge and eventually had lumbar disc surgery. The examiner noted that the low back condition was present prior to the ruptured disc in April 2007, had its onset in service, and was related to the landmine incident in Afghanistan. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating (1) that a condition was noted during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, special considerations attend the cases of combat veterans. Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). In the case of any Veteran who engaged in combat with the enemy in active service during a period of war, campaign, or expedition, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C. § 1154(b) (West 2002). Here, the Veteran's injury happened was the result of enemy action and can be considered to have been incurred during combat with the enemy. The Board has considered the Veteran's testimony and finds it is competent, credible, and sufficient to establish he injured his back as a result of a mine explosion in service. The mine explosion is documented in the service records and the injury is consistent with the circumstances of his service in Afghanistan. Therefore, the Board acknowledges that he likely sustained injury to the back but due to the exigencies of his combat service was unable to seek appropriate medical attention for the condition. Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). The Board acknowledges that a low back condition was not immediately reported following the incident and that initial treatment focused on rectal symptoms. However, in cases involving combat VA is prohibited from drawing an inference from silence in the service medical records. Kahana v. Shinseki, 24 Vet. App. 428 (2011). While the Board is prohibiting from drawing an inference based on the absence of treatment in service, the Board is free to consider the available service treatment records. Those records show reports of low back symptoms. The Board has also considered the Veteran's and his spouse's lay testimony regarding incurrence of a low back injury and continuity of symptoms since service. Their testimony was credible and was beneficial in explaining some of the medical gaps in the record. Regarding the Veteran's belief that his current low back disability is associated with mine explosion in service, the Veteran is competent, even as a layman, to comment on any symptoms within his senses, such as having experienced low back pain. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 C.F.R. § 3.159(a)(2) (2012). However, he is not competent to ascribe these symptoms to a particular diagnosis such as a degenerative joint disease of the lumbar spine. Certain disabilities like degenerative joint disease are medically complex in nature and simply not readily amenable to lay diagnosis or probative opinion on etiology. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and service or a service-connected disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, there is also competent medical evidence in support of the claim. The Board affords the most recent July 2012 VA opinion significant probative weight. First, the examiner provided a rationale for that opinion. Second, the examiner reviewed the Veteran's claims file, and provided the opinion to supersede the previous January 2012 opinion. The Board attaches less probative value to the January 2012 opinion since the more recent examination and opinion essentially replace that one. The Board has also considered the January 2009 VA opinion that is against the claim. The Board's concerns with that examination were addressed in the September 2011 Remand directive. An opinion is adequate if it is based on consideration of the relevant lay and medical evidence. In addition, an opinion is probative if it is based on an accurate factual premise, offers clear conclusions with supporting data, and a reasoned medical explanation. A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. Nieves-Rodriguez, 22 Vet. App. 395 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). However, that opinion is not afforded significant probative weight because it failed to consider the Veteran and his spouse's credible lay testimony. In addition, the examiner did not acknowledge the Veteran's complaints of low back pain in service. Accordingly, the Board finds that the criteria for service connection for a low back disability, diagnosed as degenerative joint disease of the lumbar spine, have been met. In making this determination, all reasonable doubt has been resolved in favor of the Veteran, and the claim for service connection for a low back disability is granted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disability of degenerative joint disease of the lumbar spine is granted. ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs