Citation Nr: 1308629 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 11-02 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a thoracolumbar spine disability. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The appellant and his wife testified at a videoconference hearing held before the undersigned member of the Board in June 2012. A transcript of the hearing has been associated with the claims folder. FINDING OF FACT It is as likely as not that the degenerative disc disease with osteoarthritis of the lumbar spine and compression fracture of a lower dorsal vertebra is a result of an inservice injury. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, service connection is warranted for degenerative disc disease with osteoarthritis of the lumbar spine and compression fracture of a lower dorsal vertebra. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159. 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be awarded for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a claimant must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). Service connection for a "chronic disease," such as arthritis, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). For a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." In a recent decision from the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Walker v. Shinseki, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___F.3d___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb 21, 2013). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 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 contends that service connection is warranted for a thoracolumbar spine disorder as a result of an injury received when he served in Vietnam. Service treatment records revealed normal spine on entrance examination in July 1967 with the accompanying report of medical history showing no evidence of recurrent back pain, arthritis, rheumatism, or bone, joint or other deformity. In February 1968 the Veteran was seen for a direct blow to the back at the T12 area. He was tender over the spine of the vertebra of T11-L2 in the paravertebral muscles. The impression was paravertebral muscle contusion, rule out fracture. The X-ray report of February 1968 was normal with no evidence of fracture. A November 1969 note revealed complaints of back pain for over 8 months, treated with heating pad and Robaxin. The June 1970 separation examination was normal. Thereafter, post-service records revealed that the Veteran was seen in the emergency room for diabetes symptoms in November 1991, with a history of a minor injury from a shrapnel wound to the back. No remarkable findings regarding the back were reported in the physical examination. In June 1992, the Veteran reported having injured his back, which interfered with exercise. An August 1992 record noted a history of injuring his back 3 weeks earlier at work, and he was prescribed chiropractic treatment. He was described as improving daily. A November 1993 record gave a history of backache since an injury 1 1/2 years earlier, with history of chiropractic treatment. He reported the pain went into both legs. A December 1997 pre-employment physical for a company hereinafter referred to as "M M" was significant for a history of mild back pain dating back to April 1991. Records from the late 1990s are negative for any pertinent back complaints. He was noted to be working at M M in a position repairing dump trucks and other heavy equipment in records from July 1998 and March 1999. In March 2000, the Veteran was followed for diabetes and complaints of worsening groin pain when standing, and was still working doing heavy lifting and hammering. His back pain was described as better. VA treatment records from 2003 through 2008 primarily addressed diabetes, with no back complaints recorded. A January 2005 VA examination for diabetes gave a history of chronic back trouble but denied radiation to the feet. The rest of the examination focused on diabetes. Likewise an April 2008 VA examination report for diabetes included a history that noted missing 7 days of work because of back pain and diabetes. In August 2009, the Veteran was seen at VA for a history of back injury of being knocked off a truck in Vietnam and injured his back. He was taken to a hospital and reported being partially paralyzed in both legs. It took about a month to improve. He continued with back pain since that time. It gradually worsened over time. He now had constant back pain, between the shoulder blades down to the lower back and tingling sensations in the feet. He had intermittent flare-ups the last 3 weeks. He took Darvocet and Ibuprofen and had seen a chiropractor in the past, which did help. X-ray of the lumbar spine taken in September 2006 showed shallow levoscoliosis, marked hyperlordosis and angular kyphosis at L4-5. Spondylosis was more severe from L2-3 to L5-S1. The assessment was chronic low back pain, with a trial of Gabapentin administered. A referral for chiropractic treatment was also made as he had help with such treatment in the past. The August 2009 X-ray report of the lumbar spine showed degenerative disc disease at L5-S1 and mild to moderate spondylosis without acute bony abnormality. An August 2009 thoracic spine X-ray resulted in an impression of suspected small wedge compression fracture of one of the lower dorsal vertebrae. Correlation to the point tenderness was suggestive of minimal degenerative changes. VA treatment records indicate that in November 2009 the Veteran underwent a chiropractic consult for pain between the shoulders and low back pain since 1968. There was no specific injury. He had periodic episodes of flare-ups putting him to bed 1 to 3 times a year. He rated the pain as a 7/10, sharp, aching and tingling. This was aggravated by prolonged standing, walking and bending. Chiropractic evaluation showed normal sensory examination. His range of motion was limited with 60 degrees flexion, 10 degrees extension, 45 degrees left and right lateral flexion and 30 degrees left and right rotation. He had pain on palpation with associated myospasms at the lower lumbar and thoracic regions. He also had positive subluxations of various levels of the thoracic lumbar and pelvic areas. The plan was chiropractic treatment including adjustments, moist heat, and electric stimulation. Chiropractic notes from December 2009 indicated that he was gradually improving. The report of a January 2010 VA examination of the spine included review of the claims file, with the history of "blow to the back" noted. The Veteran described falling from a truck in Vietnam and hurting his back. Another time he indicated that a mortar round exploded and hit him in the back. This bothered him for a few weeks. The service treatment records described a direct blow to the back, but X-rays were normal. He was noted to have been treated with Robaxin and a no-lifting restriction for 3 days. There was nothing further in the service treatment records. The pain was located in the left upper lumbar area at the waistline. The pain was constant, ranging from mild, moderate to severe. It was sharp and radiated to both legs. He had flares 3 to 4 times a year lasting 2-6 weeks. During such flares he moved slowly and used a back brace. Sometimes he missed work. Treatment included Ibuprofen. Examination revealed normal posture with lumbar flattening but no other abnormal spinal curvatures. Motor strength was 5/5 throughout. There was a sensory deficit in the lower extremities of 0/2 shown in both feet on pinprick and vibratory sense. The rest of the sensory exam was normal. His range of motion was limited with 50 degrees flexion, 10 degrees extension, 20 degrees left and right lateral flexion, 30 degrees left rotation and 25 degrees right rotation. There was an additional loss of flexion to 35 degrees on 3 repetitions. The reports of X-rays from August 2009 for the lumbar and thoracic spine were recited. The examiner diagnosed the Veteran with degenerative disc disease (DDD) of the lumbosacral spine and slight wedge compression fracture of one of the lower dorsal vertebrae. The examiner commented that the findings of bilateral distal loss of pain and vibratory sense were most suggestive of diabetic neuropathy of the legs. The Veteran related that his feet have felt numb for 4-5 years. The examiner gave an opinion that it was less likely than not that the current back condition was related to back strain during military service. The rationale was that the medical evidence suggests that he had an apparent short-term back strain in 1968. There was no evidence of chronic condition and no evidence of continuity of problems after service. It was noted that the natural history of a strain is to resolve. There was no additional medical evidence until 1993. This evidence points to another injury having occurred. He had been working many years in a physically demanding occupation with many opportunities for injury to his back. The examiner is noted to have pointed to the evidence including that in the service treatment records with X-ray noted to have been negative, post-service records dating back to the November 1993 visit for lower back pain 1 and 1/2 years ago, a March 2000 note indicating the Veteran gets groin pain when standing a lot, with a history of work doing heavy lifting and hammering, with back pain better and VA records beginning in 2003 with back pain not mentioned until 2009. Lay statements in support of the Veteran's claim include a September 2009 statement from his wife confirming that she had known him for 40 years, and he then and now has back pain. Other statements included an undated one from friends who knew him for 15 years, during which he was known to have back problems that he attributed to an injury in Vietnam. Coworkers and human resource (HR) personnel sent statements in March 2010 stating that they knew the Veteran to have back pain for as long as he worked at M M, beginning in 1998. The HR person noted that the Veteran reported back pain prior to starting work at M M in 1998, and enclosed a copy of the pre-employment physical, which reported back pain. A March 2010 letter from a former coworker at a tractor company, C T, he worked for since the early 1970s (shortly after service and prior to working for M M) described the Veteran as continuously reporting back pain, and saying that he had hurt it in Vietnam. The Veteran also reported in his March 2010 NOD that he had no back pain prior to his injury in Vietnam in February 1968. Since that injury he had had some sort of back pain that has worsened over the years. He reported that on separation from the service, he was asked how his back was and he answered okay because he was afraid that if he told them it was hurting he would have been delayed from leaving the service. He indicated he treated with a doctor in 1972 in Kannapolis, North Carolina for several years and was put on pain pills. He claimed he worked an office job from 1983 to 1997, but started having more problems. He indicated he treated with another doctor in Salisbury and was given a brace. He began going to the Winston VA in 2003 for diabetes and told the doctor about his back problems, but the doctor only focused on his diabetes. He pointed out that VA X-rays in 2009 showed an old injury. In his February 2011 substantive appeal, he indicated that he had back pain since service but just put up with it for 43 years. A December 2010 favorable opinion from the Veteran's VA chiropractor stated that he had reviewed the Veteran's records at VA and given such review and the history of an injury in 1968 when the Veteran bounced off the back of a 1.5 ton truck, his examination findings including imaging of this area, it was the examiner's opinion that this injury was as least as likely as not the initiating factor in a lifelong lower back condition. The severe amount of osteoarthritis in this region shows an old injury with related change. The Veteran would have and did experience pain over the last 40 years. VA treatment records from January 2011 addressed other problems but noted chronic low back pain that started during the military. The Veteran reported that he could not move his legs for a short while after his initial injury. Since then, he has had chronic low back pain that has gradually worsened over time. He was assessed with chronic low back pain. A December 2011 addendum to the January 2010 VA examination reviewed the favorable opinion of the VA chiropractor of December 2010. This examiner concurred with the previous opinion of the VA examiner in the January 2010 examination. This examiner did concede that it was possible that the initial injury in service in 1968 was related to the Veteran's current osteoarthritis, but there was no evidence of chronicity of the condition. The initial condition was strain, with no more complaints until 1993, 25 years later. Although the VA chiropractor stated that the Veteran had lifelong lower back condition, the evidence only showed that since the Veteran's occupation was very demanding, and he could injure his back later on. The Veteran's June 2012 hearing testimony included the representative arguing that the Veteran had provided statements confirming continuing back complaints as early as the 1970s. The representative pointed out that the Veteran made numerous unsuccessful attempts to obtain past treatment records and employer records over the past 30 years. These records were no longer available. The representative also indicated that the December 2011 medical opinion suggested that there was a possible link between the 1968 injury and current assessment. The Veteran testified that after being X-rayed for his back injury, he was told he had a bad lower back bruise. This was during the TET offensive in 1968. He reported seeking treatment after service in 1972, although he had pain from 1970 to 1972. He indicated that the treatment in 1972 was from a back specialist who noticed he had a back injury and prescribed medication. He later went to a chiropractor, and went to 2 or 3 different ones. He confirmed that he was unable to obtain records from these chiropractors. He indicated that he told treating doctors about his back problem in 1992 or 1993 when first treated for diabetes. He confirmed that after service, he worked as a mechanic from 1974 to 1983 and his back hurt all the time with all his jobs. He got into management in 1982 or 1983 but continued with back problems despite this being light duty. He left in 1997 to work at M M, and was hired despite this employer knowing about his bad back. He denied any intervening injuries at these post-service jobs. He confirmed that he began seeing the current VA chiropractor in 2010. His wife confirmed that she has known the Veteran for 42 years and he always had back problems. The evidence as set forth above includes conflicting opinions as to the time of onset of the Veteran's current back disorder. The opinion from the January 2010 VA examiner and the December 2011 addendum strongly suggest that the back disorder was less likely than not related to service, and it is in conflict with the December 2010 opinion from the VA chiropractor, who found that the Veteran's inservice back injury was as least as likely as not the initiating factor in a lifelong low back condition. The Board notes that the rationale included in the January 2010 VA examination report is based on a finding that the 1968 inservice injury was acute with no evidence of back problems after 1968. This ignores the service treatment record from November 1969 referring to back pain of 8 months' duration. The examiner also determined the current back condition was less likely than not related to back strain during military service. The explanation was that the medical evidence suggested that the Veteran had an apparent short-term back strain in 1968, which tends to be an acute condition. However, a review of the service treatment records shows no evidence that back strain was diagnosed, but a contusion was noted in 1968. No specific diagnosis was made in the November 1969 record, although the Veteran was noted to have back pain of 8 months' duration. The examiner in the December 2011 addendum raised the possibility of the current back condition having been initiated by a February 1968 injury, as shown in the statement "it is possible that the initial injury in service in 1968 is related to his current osteoarthritis" but the examiner then found that there was no evidence of chronicity of the condition. As with the January 2010 report, this assessment appears to have ignored the later reference in November 1969 of back pain of eight months' duration. Both reports of January 2010 and January 2011 fail to take into account the lay evidence suggesting that the Veteran had low back pain dating at least 40 years. While the examiner in January 2010 determined that the negative X-ray finding in February 1968 was evidence of no fracture or other injury to the bone, the examiner did not discuss the significance of findings of old thoracic vertebra fracture on the August 2009 X-ray. The examiner's opinion that a post-service injury to the spine happened is not shown to be based on medical evidence, and the Veteran has denied such post-service injury. While he is shown to have engaged in some heavy labor employment, he is noted to have reported pre-existing back pain to employer M M on a December 1997 pre-employment examination. There is no evidence that he injured his back at work, which appears to be the premise upon which the unfavorable opinions are based. In regards to the chiropractor's favorable opinion of December 2010, this opinion was based on review of available VA records, which included X-ray evidence suggestive of old injury. While the claims file in its entirety was not apparently reviewed, the chiropractor, who has regularly treated the Veteran, appears to have based his opinion in part on the Veteran's history, which appears credible and consistent with the injuries and complaints shown in the service treatment records. While the Veteran does have some inconsistencies in his records as to the onset of his current back symptoms, with the December 1997 pre-employment examination indicating that such problems began in 1991, and other records suggesting onset in the early 1990s, generally he is consistent in the re-telling of events. He has indicated that he refused to disclose back pain on separation from service due to fears of having his separation delayed. His contentions of long-term back symptoms are supported by other lay witnesses, to include somewhat disinterested parties (coworkers). He has reported that he had medical treatment for his back very shortly after service, but indicated records are not available. The Veteran's written lay statements and his hearing testimony are found to be credible and to the extent that they describe his experiencing back pain in service and of having sought treatment after service, such statements describe symptoms at the time that supports a later diagnosis by a medical professional. See Jandreau, supra, see also Barr, supra. Regarding the medical nexus linking the current back disability to service, this has been provided by the VA chiropractor. The evidence is in equipoise on the question of whether disability began in service. Thus, for the reasons described above, the Board concludes that there is a reasonable doubt as to whether the Veteran's current disability is causally related to his military service. To the extent that there is 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 degenerative disc disease with osteoarthritis of the lumbar spine and compression fracture of a lower dorsal vertebra is warranted. ORDER Service connection for degenerative disc disease with osteoarthritis of the lumbar spine and compression fracture of a lower dorsal vertebra is granted. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs