Citation Nr: 1309577 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 10-41 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In October 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge, and a transcript of that hearing is of record. FINDING OF FACT The most probative competent evidence of record is in equipoise as to whether lumbar spine arthritis with stenosis and degenerative disc disease are etiologically related to service. CONCLUSION OF LAW Lumbar spine arthritis with stenosis and degenerative disc disease were incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties 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 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.326 (2012). As the benefit sought is granted in full in the decision below, further discussion as to VA's duties to notify and assist are rendered moot. Analysis The Veteran asserts that he has a current low back disability as the result of his active military service. He reports that he initially injured his back during basic training and then reinjured his back during advanced individual training. The Veteran also contends that his duties as a forward observer in Vietnam further aggravated his back. He testified that in Vietnam he had to carry and jump with equipment weighing in excess of 60 pounds over rough terrain. The Veteran also related a specific incident in August 1968 where his unit was ambushed and he was blown onto his back by a rocket-propelled grenade. The Veteran has submitted several statements from fellow service-members who state they witnessed the Veteran being injured during the attack. Alternatively, the Veteran asserts that a pre-existing low back disorder was aggravated by his active military service. A December 1967 report of medical history reflects that the Veteran reported a history of recurrent thoracic back pain related to heavy work. On medical examination in December 1967, the Veteran's musculoskeletal system was deemed normal. A January 1968 service treatment record shows the Veteran complained of back pain. A December 1969 report of medical history indicates the Veteran denied a history of recurrent back pain, and a December 1969 separation examination shows the Veteran's musculoskeletal system was found normal. A January 2004 private medical record indicates the Veteran did not have any orthopedic problems at that time, and an October 2004 VA treatment record shows the Veteran did not have any musculoskeletal symptoms. A July 2009 X-ray examination showed persistent degenerative change in the lower lumbar spine, mainly at the L4-L5 level, with no interval acute fractures identified. There was mild sclerosis within the posterior facets from L3-L4 to L5-S1, and a benign bone island was noted in the L2 vertebral body. The record also indicates that a May 2008 X-ray examination reflected mild narrowing of the L4-L5 disc space with lesser degree of narrowing at the L3-L4 level, along with sclerosis and bone spur formation. On VA examination in August 2009, the Veteran denied a history of a back injury and reported that he started experiencing constant low back pain approximately three years ago. It was noted that X-ray examination showed degenerative change in the lower lumbar spine, mainly at the L4-L5 level. Clinical manifestations were moderate pain, fatigue, and moderate reduction in range of motion. The VA examiner commented that there was no evidence in the Veteran's medical records of a back injury due to lifting heavy weight during service. In support of his claim, the Veteran submitted an August 2010 letter from a private physician, R. M. R. M. noted that the Veteran had been battling worsening back pain over the past few years, which had begun when he was in service. He reported that the Veteran's in-service duties involved carrying a radio pack that weighed approximately 80 pounds and that he had also carried multiple other pieces of equipment, which at times totaled over 150 pounds. R. M. stated that the Veteran had episodes of back pain while he was in the military that required him to seek medical attention. R. M. opined that although some of the Veteran's back pain was age-related, some of his current pain was initiated from his activities during service. In March 2011, the VA examiner who performed the August 2009 examination provided an addendum opinion. The VA examiner noted that service treatment records documented one episode of low back pain in January 1968 but found it significant that there was no evidence of evaluation or treatment for an on-going low back condition. The VA examiner also observed that there was no evidence of evaluation or treatment for a low back condition within one year following service. The earliest medical records from 2002 also did not reflect complaints of low back problems, and in 2004 the Veteran reported that he was doing well. The VA examiner noted the 2004 private physician's observations that the Veteran was obese and not very physically active and that the Veteran had denied any orthopedic problems. The VA examiner highlighted that during the August 2009 examination, the Veteran reported that his low back pain began in approximately 2006, 37 years after his separation from service. The VA examiner opined that the Veteran's degenerative disc disease was consistent with age-related changes and was not due to one episode of low back pain that completely resolved during service. The Veteran also submitted a July 2011 letter from R. M., M.D., in support of his claim. R. M. repeated his statements that the Veteran's thoracic and lumbar back pain were directly related to his in-service duties as a forward observer. R. M. noted that the Veteran's duties as a radio operator often included carrying a radio pack on his back that weighed approximately 80 pounds. R. M. stated that he had reviewed the Veteran's military file, to include his service treatment records, and noted that there were multiple occasions beginning in December 1967 where the Veteran complained of thoracic and lumbar back pain. He also observed the notation that the Veteran's reported pain was related to heavy work. R. M. highlighted the January 1968 service treatment record indicating the Veteran's back pain was severe enough to warrant a prescription of a narcotic. R. M. reported that the Veteran had been battling with his mid-back pain on a regular basis since his military service and that he continued to suffer with it. R. M. opined that the Veteran's current condition on examination mimicked the 1967 examination and that the pain was in the same location. Therefore, R. M. felt strongly that most of the Veteran's back pain, if not all of it, was directly related to his military service. The evidence of record also includes an October 2011 memorandum from a VA physician who noted that the Veteran had long-standing back pain. Evaluation revealed lumbar arthritis and mild stenosis. The VA physician reported the Veteran's statements that he had carried heavy equipment during service and indicated that the Veteran had produced documentation showing that he suffered from back pain prior to entering service. The VA physician opined that it was likely that the Veteran's original back pain was aggravated by his military service and caused his current back pain to persist. A June 2012 letter from a private chiropractor indicates that he had treated the Veteran in the 1960s, but that clinical records of such treatment were no longer available. The private physician reported that he remembered treating the Veteran for back problems when the Veteran's mother would bring him and his sister to his office. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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) (2012). 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). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not noted. The term "noted" denotes only such conditions as are recorded in examination reports. History provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a pre-existing condition. 38 C.F.R. § 3.304(b)(1) (2012); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation, may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2002). Although, as noted above, the Veteran reported a history of recurrent thoracic back pain related to heavy work on examination for induction to service in December 1967, clinical examination at that time was negative for any back disability. As such, the Veteran is presumed to have been sound on entrance to service as to any low back disability. The Board finds that neither the Veteran's reported history of recurrent back pain at that time, nor a private chiropractor's statement as to having treated the Veteran for back problems in the 1960's, constitutes clear and unmistakable evidence that a low back disability existed prior to, and/or at the time of, entrance to service. As such, the presumption of soundness on entrance to service is not rebutted, and the Veteran must be presumed to have been sound on entrance to service as to any low back disability. There are numerous medical opinions of record as to whether the Veteran's current low back disabilities, lumbar spine arthritis with stenosis and degenerative disc disease, are etiologically related to service. Although a January 1968 service treatment record shows the Veteran complained of back pain, service treatment records do not reflect any further complaints of, treatment for, or a diagnosis of a low back disorder during service, and also do not demonstrate evidence corroborating the Veteran's lay testimony regarding a back injury in August 1968. Additionally, at the time of separation from active military service in December 1969, the Veteran denied a history of recurrent back pain, and the coinciding medical examination shows the Veteran's musculoskeletal system was normal. Further, on VA examination in August 2009, the Veteran denied a history of a back injury, and reported that he started experiencing constant low back pain approximately three years earlier. The VA examiner in the August 2009 examination report, and in an addendum opinion dated in March 2011, provided negative nexus opinions to service. It was commented that there was no evidence in the Veteran's medical records of a back injury due to lifting heavy weight during service. It was opined that the Veteran's degenerative disc disease was consistent with age-related changes and not due to one episode of low back pain that completely resolved during service. In contrast to the above negative nexus opinions, a private physician opined in support of the Veteran's claim in August 2010 and July 2011 letters. The private physician's opinion was based on consideration of the Veteran's subjectively reported activities in service, and pertinent findings in the service treatment records. It was noted that that the Veteran's duties as a radio operator often included carrying a radio pack on his back that weighed 80 pounds. It was also observed that the January 1968 service treatment record indicated the Veteran's back pain was severe enough to warrant a prescription of a narcotic. It was also considered that the Veteran had reported continuity symptomatology of low back pain since service. Although the private physician relied on the Veteran's subjective report of activities and events of service, the Veteran is competent to report such events as carrying heavy weight and experiencing low back pain therefrom. The Board finds the Veteran is also credible in this regard as his described duties are consistent with the circumstances of his documented service as a radio operator. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Further, his report of low back pain in service is corroborated by the service treatment records. Additionally, he is competent to report continuity of symptomatology of pain since service, and the Board finds that he is credible in this regard. The Board notes that pain is a manifestation of arthritis which is listed in 38 C.F.R. § 3.309 (2012). See Walker V. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). In view of the foregoing, the Board finds that the probative clinical evidence of record is in equipoise as to whether the Veteran's current low back disabilities, arthritis with stenosis and degenerative disc disease, are etiologically related to service. With resolution of doubt in the Veteran's favor, the Board finds that the evidence supports service connection for lumbar spine arthritis with stenosis and degenerative disc disease. 38 C.F.R. § 3.102. ORDER Service connection for lumbar spine arthritis with stenosis and degenerative disc disease is granted. ___________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs