Citation Nr: 1312857 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 11-06 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to August 1966 and from May 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran filed a notice of disagreement (NOD) on March 2010. A statement of the case (SOC) was issued on January 2011 and the Veteran perfected his appeal in a March 2011 VA Form 9. The Veteran was afforded a Travel Board Hearing before the undersigned in February 2012. A written transcript of this hearing was prepared and incorporated into the evidence of record. In April 2012, the Board remanded the Veteran's claim of service connection for a back disorder for further examination. The case was then returned to the Board for further disposition. In September 2012, the Board again remanded the Veteran's claim for an addendum opinion to the prior examination. The requested development having been completed, this claim is once again before the Board. A review of the Virtual VA paperless claims processing system revealed VA outpatient treatment records from the VA Medical Center in Wichita, Kansas, dated October 2011 to January 2012. Please note 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). FINDING OF FACT The evidence of record is at least in equipoise as to whether the Veteran's back disorder originated in service CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, a back disorder was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA With respect to the claim for entitlement to service connection for a back disorder, because the claim is granted herein, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159 (2012). Legal Criteria Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires (1) medical evidence of a presently existing 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 present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). Certain chronic diseases, such as arthritis and other organic disease of the nervous system, may be presumed to have been incurred in service if manifested to a compensable degree within one year from discharge from service. 38 U.S.C.A. §§ 1011, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). With chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 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. When the disease entity is established, there is no requirement of evidentiary showing of continuity. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102. Analysis The Veteran contends that he is entitled to service connection for a low back disorder, variously diagnosed. In the Veteran's March 2010 NOD, he indicated that the back disorder, claimed as degenerative disc disease, was related to an accident in service. The Veteran further reported at the February 2012 Travel Board hearing that he was pushed off of a tank and landed on his back on concrete during his initial period of active duty from February 1966 to August 1966. After the initial injury, the Veteran stated that he just dealt with the pain and did not bring it up during the rest of training or during subsequent duty assignments. The Veteran also contends that he has received treatment for his back since 1970. He indicated that he had to watch how hard he worked and that, as he got older, the worse the pain began to manifest. A review of the Veteran's service treatment records (STRs) did not reveal any treatment or diagnosis for a back disorder. The Veteran's separation examination was also negative for any indication of a back disorder. A review of the Veteran's private treatment records shows that he was seen on several occasions from 2006 to 2009 for complaints of back pain. A July 2006 treatment note revealed an indication of left radiculopathy and that he was administered an epidural steroid injection. Further, indication was given that the Veteran had received an epidural steroid injection about two years prior with good results. A December 2006 treatment note showed that the Veteran had an indication of radicular right back and leg pain and was administered an epidural steroid injection. A treatment note in November 2008 indicated that the Veteran received an epidural steroid injection for an indication of left lumbar radicular pain. Further, indication was given that the Veteran had received an epidural steroid injection in December 2006 with good results. The Veteran's problem list also noted diagnoses of degenerative joint disease and lumbar degenerative disc disease. Imaging studies in August 2009 revealed evidence of advanced degenerative disc disease. A treatment note in September 2009 revealed an indication of right radicular pain extending into the right leg. The Veteran was administered an epidural steroid injection. The Veteran's problem list also noted diagnoses of degenerative joint disease and lumbar degenerative disc disease. A review of the Veteran's VA outpatient treatment records revealed several instances of treatment of spine pain from 1991 to 2011. The Veteran was seen in September 1991 for complaints of back pain and provided with an x-ray that revealed degenerative disc disease. The Veteran also had imaging performed on his back in September 1997 that showed degenerative disc disease with no spinal stenosis. The Veteran was seen for complaints of radicular pain in March 1998 and provided with an electromyography (EMG) that was positive for radiculopathy. In a February 1999 treatment record, the Veteran was seen for complaints of low back and cervical spine tenderness. It was indicated that the Veteran complained the condition was particularly bad after sitting for long periods and that his job as a carpet-layer exacerbated his pain by his constant bending and moving. Objective testing revealed focal tenderness at T12 - L1 and limited flexibility. The Veteran was diagnosed with back pain. A March 2004 treatment note indicated that the Veteran was seen for complaints of back pain and had been administered a cortisone injection. A January 2005 active problem list indicated that the Veteran was diagnosed with back pain and that it was stable. Treatment records from April 2009 indicated that the Veteran was diagnosed with a chronic backache, but afraid to take medication. An August 2009 treatment note showed that the Veteran had been complaining of chronic low back pain with radiation to the left lower extremity for approximately forty years. The Veteran indicated that the pain increased when riding in cars and that it decreases with changing positions and using a TENS unit. The Veteran was administered range of motion testing which revealed that he could forward flex to the point of reaching his fingertips to his mid shin and his extension was markedly decreased. The physician instructed the Veteran in the continuing use of a TENS unit to treat. A September 2010 and December 2011 note indicated that the Veteran had chronic degenerative joint disease, but was afraid to take medication. The Veteran was afforded a VA examination in May 2012 that included an etiological opinion discussing the Veteran's back condition. After examining the Veteran, the examiner concluded that the Veteran's back disability was less likely than not incurred in or caused by the in-service injury, event, or illness. Additionally, she stated that she could find no documentation of treatment for a back injury in the Veteran's service treatment records, and that the separation examinations did not indicate any back problems at the time of separation. Further, the examiner stated that the first documentation concerning back problems found in the CPRS was a September 1991 x-ray showing degenerative disc disease. The examiner concluded that with no documentation of an injury and no history of treatment for over 20 years after separation, it was less likely than not that the Veteran's current back condition was caused by a military injury. The VA examiner who conducted the May 2012 examination offered an addendum opinion in October 2012, after being asked to consider the Veteran's lay statements of an in-service injury and continuous pain since discharge as assumed. In so doing, the VA examiner found that the Veteran's back disorder was less likely than not incurred in or caused by the in-service injury, event, or illness. This was again based upon the fact that the Veteran had no documented treatment for a back injury in-service, no back disability noted on separation, and no documented treatment for back problems until 20 years after his discharge from service. However, the examiner added that, assuming an in-service back injury occurred as described and given the Veteran's lay belief that back problems he experienced over the years (1970 to date) and current back problems are a continuing disease process of the in-service back injury and there was a nexus of treatment then it would be at least as likely as not caused by the in-service injury. The Board finds that the Veteran has provided competent and credible testimony that he sustained an injury during military service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection); Layno, 6 Vet. App. at 469-70 (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Veteran is capable to report the incident in which he was pushed off of a tank during training in military service as he was actually at advanced training for track vehicle repair, or tanks, during the time period in question, as shown by service personnel records, and he experienced it firsthand. Further, the Veteran's statements are considered credible as the record shows that he has been consistent in reporting that his back injury was related to an in-service accident in both his March 2010 NOD and February 2012 Board hearing. The credibility of the Veteran's statements is also supported by the fact that he would have been working around tanks within the context of his military occupational specialty as indicated at his February 2012 Board hearing and on his DD Form 214. The evidence of record supports a finding of a current disability, because the Veteran's private treatment records, VA medical records, and VA examinations reveal that the Veteran has a presently existing chronic low back disorder, variously diagnosed to include degenerative joint disease, degenerative disc disease, and lumbar degenerative disc disease. See Shedden, 381 F.3d at 1167; see also Caluza, 7 Vet. App. at 506; see also Shedden, 381 F.3d at 1167; Hickson, 12 Vet. App. at 253; 38 C.F.R. § 3.303. The evidence of record also supports a finding of an in-service injury because the Veteran's competent and credible lay statements reflect that he suffered an injury on active duty when he was pushed off of a tank and landed on his back. Id. Thus, the remaining issue is whether there is evidence of a nexus between the Veteran's current low back disability and service. Id. In regard to continuity of symptoms, the Board find that the Veteran's claimed low back condition, as it involves arthritis, is properly afforded such consideration, as it is one of the enumerated conditions in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a)). In this regard, the Board finds that the Veteran has provided competent and credible testimony that his symptoms of low back pain have continued since service discharge. See Buchanan, 451 F.3d at 1336-37; Layno, 6 Vet. App. at 469-70. The Veteran is competent to testify about the onset and continuation of his low back pain, as pain is an observable symptom within the realm of his personal knowledge. Further, the Veteran is credible, as his statements regarding experiencing low back pain since service have remained consistent and are corroborated by the treatment notes in his VA outpatient treatment records, in which it was indicated that the Veteran had been experiencing low back pain for almost forty years. In assessing the evidence of record, the Board observes the negative medical nexus opinions provided by the VA examiner in the May 2012 VA examination and October 2012 addendum opinion. Notably, however, these opinions merely offer an equal juxtaposition in their findings, which are essentially in relative equipoise with the findings of that same examiner, who also rendered a positive opinion based upon a concession of the Veteran's lay testimony. As, the differing set of medical nexus opinions offered by this same examiner turn upon a concession of the Veteran's lay testimony regarding in-service injury and continuity of symptoms, the Board finds equal weight afforded to each. After a full review of the totality of the medical and lay evidence of record, and resolving all reasonable doubt in favor of the Veteran, the record evidence is at least in equipoise as to whether the Veteran's low back disorder (variously diagnosed to include lumbar degenerative joint disease and lumbar degenerative disc disease) had its onset during the Veteran's period of service. Accordingly, the Board determines that service connection for a low back disorder is granted. The appeal is granted. ORDER Entitlement to service connection for a back disorder, variously diagnosed to include lumbar degenerative joint disease and lumbar degenerative disc disease, is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs