Citation Nr: 1308959	
Decision Date: 03/15/13    Archive Date: 03/25/13

DOCKET NO.  11-20 953	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUE

Entitlement to service connection for a back disability.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

D. Havelka, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from November 1942 to November 1945. 

This matter is before the Board of Veterans' Appeals (the Board) on appeal of an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which, in part, denied the Veteran's service-connection claim for thoracic spine degenerative disc disease (claimed as back problems).  The Veteran disagreed with the RO's determination, and perfected an appeal as to this issue.

In September 2012, the Veteran testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by the undersigned.  A transcript of that hearing has been associated with the Veteran's VA claims folder.

The case was previously before the Board in September 2012, when it was remanded for examination and a medical opinion.  The requested development has been completed.  

This appeal contains a hybrid record; part is in a physical claims folder and in part is in the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

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).


FINDINGS OF FACT

1.  Service treatment records do not reveal any complaints of, treatment for, or diagnosis of a back disorder during service.  

2.  The Veteran reports injuring his back during a training accident in 1943.  

3.  The Veteran reports a history of back pain dating from service until the present, including treatment at private medical providers whose records are unavailable.

4.  The Veteran's wife reports that she has observed his symptoms of back pain during their entire period of marriage, 1965 to the present.

5.  VA medical records document degenerative changes of the thoracic spine based on x-ray examination dating from 2001 to the present, and degenerative disc disease of the lumbar spine dating from 2003 to the present. 

6.  An October 2012 VA medical opinion is equivocal, indicating that while there is a lack of medical record documentation related to the claimed back disability, if the Veteran's history is accurate, then the current back disabilities are related to the injury during service.   


CONCLUSION OF LAW

The criteria for service connection for a back disability have been met.  38 U.S.C.A. §§ 101(16), 1110, 1131, 1116, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012).  



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. § 3.102 , 3.156(a), 3.159, 3.326 (2012).  This is so because the Board is taking action favorable to the Veteran by granting service connection.  As such, this decision poses no risk of prejudice to the Veteran.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

Generally, service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  In addition, service connection may be granted for any disease diagnosed after separation, when all 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 for a claimed disorder, the following must be shown:  (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999).

Following the point at which it is determined that all relevant evidence has been obtained, it is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole.  Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F. 3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited therein); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). 

In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511 (1995); see also Pond v. West, 12 Vet. App. 341, 345   (2000). 

The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

The Veteran claims that he has a current back disability that had its onset in, or is otherwise related to his period of active duty service from 1942 to 1945.  He specifically reports that he sustained an injury to his back in a light tank driving accident during training operations in 1943, where his tank rolled over while he was inside.  He asserts that he was treated on-site by a field medic issuing pain medication and that he did not have further treatment for his back pain during service.  He further indicates that he has had back pain continuously since that time; his wife testified that for the span of their 47 year marriage, she has seen the Veteran suffer on and off with his back, with additional numbness in his right leg.  

Service treatment records do not reveal any complaints of, treatment for, or diagnosis of a back disorder during service.  No notation of any back symptoms was made on separation examination in 1945.  

The Veteran further reports that he did seek treatment for back pain at various points in time subsequent to service, but that the medical care providers are since deceased and any records related to such treatment are not available.  

The medical evidence of record reveals that the Veteran has a current back disability. VA medical records document degenerative changes of the thoracic spine based on x-ray examination dating from 2001 to the present, and degenerative disc disease of the lumbar spine dating from 2003 to the present. 

In October 2012 a VA Compensation and Pension examination of the Veteran was conducted, physical and radiological examination of the Veteran confirmed current diagnoses of arthritis and degenerative disc disease of the thoracolumbar spine.  The examiner's medical opinion stated that this "medical examiner finds the Veteran to be a very believable historian.  In my medical opinion it is more likely than not that the medical records extant are insufficient to establish medical nexus between the incident described in 1943 and his current back complaints/conditions.  This is because there [are] no medical records pertaining to the back from discharge 1945 (at which time the discharge physical exam does not note back problems) until 2003 in the VA electronic medical record which notes back pain after falling from a ladder.  If the adjudication authority will accept the Veteran's testimony as sufficient evidence than I would gladly make the obverse opinion."  

Review of the VA medical records contained in the Virtual VA paperless claims processing system actually reveals x-ray evidence of degenerative changes to the Veteran's thoracic spine in 2001, two years before the reported fall injury noted by the Compensation and Pension examiner.  

The Veteran has a current low back disability.  Degenerative disc disease and arthritis of both the thoracic and lumbar spine segments which is confirmed by radiology findings documented as early as 2001, and confirmed on the 2012 Compensation and Pension examination.  The Veteran reports a back injury during service and periodic back pain ever since.  The Veteran's wife has also reported her observations of the Veteran's periodic back pain during the years of their marriage.  They have provided competent testimony as to the circumstances of the claimed in-service back injury, and his ongoing back pain symptoms from the time of this injury to the present day.  See Barr v. Nicholson, 21 Vet. App. 303   (2007), citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994) [lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness' personal knowledge].  At this time, the Board finds no reason to deem such observations to be not credible. 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49   (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  

Based upon the reported history by the Veteran and the equivocal nexus opinion provided by the VA Compensation and Pension examiner, the Board must resolve any doubt in the favor of the Veteran.  As such, there is enough evidence to establish nexus to the reported injury during service.  Accordingly, service connection a back disability is warranted.  


ORDER

Service connection for a back disability is granted.  



____________________________________________
Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs