Citation Nr: 1313403 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 06-25 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1984 to April 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2004 of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This case was previously before the Board in September 2010 and September 2012, when it was remanded for further development, to include obtaining a medical opinion on the Veteran's claim. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's current low back disability had its onset in service. CONCLUSION OF LAW The criteria for service connection for a low back disability have been met. 38 U.S.C.A. §§ 1111, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant claim; however, inasmuch as this decision grants the full benefit sought on appeal, there is no reason to belabor the impact of the VCAA on this matter; any notice error or duty to assist failure as to this claim is harmless. Principles of Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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). All three elements must be established by competent and credible evidence in order that service connection may be granted. In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1131 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 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). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to diseases or defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (2012). To rebut the preusumption of soundness under 38 U.S.C.A. § 1111 there must be clear and unmistakable evidence that the claimed disease or disability preexisted service and was not aggravated in service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts and Analysis The Veteran is seeking service connection for a low back disability that he contends had its onset in service, with injuries suffered in basic training and during active duty service. The Veteran's enlistment examination in March 1983 was normal with respect to the Veteran's spine and no ongoing symptoms or history of injury was noted. He was treated in service on several occasions for low back pain. In March 1984 he reported that two years prior to service he had fallen ten feet and landed on his coccyx; he had not seen a doctor, but had experienced periodic episodes of back pain ever since. The provider noted that the injury had not been included on the Veteran's induction examination and diagnosed either chronic facet dysfunction or mechanical low back pain. He was treated again for back pain in March 1984, August 1985, and January 1986, with repeated diagnoses of mechanical low back pain. He was referred for physical therapy but never attended. Since service separation, the Veteran has been treated on a regular basis for low back pain, including chiropractic treatment from 1999 through 2001. Treatment notes list the history of traumatic injury in service during basic training. A chiropractic note in February 2000 indicated that a bone scan done three or four years prior had shown an old injury to the low back. X-rays shows evidence of spondylolytic spondylolisthesis of L5 on S1 and facet arthrosis in the mid and lower lumbosacral spine. The Veteran was afforded VA examinations in December 2010 and October 2011, and the most recent examiner provided an addendum opinion in October 2012. At the December 2010 VA examination, the Veteran provided a history of low back injury during service in 1984 with chronic low back pain since then, becoming progressively worse over the last few years. He used a cane on occasion for support when walking. The examiner diagnosed degenerative disc disease of the lumbosacral spine with grade 1 anterolisthesis of L4 on L5. At that time the examiner did not have access to the Veteran's service treatment records and offered the opinion that his current low back disability was not related to his service because there was no evidence of any injury or treatment in service. On the subsequent VA examination in October 2011, the examiner reviewed the Veteran's service treatment records and offered the opinion that the Veteran's low back disability was incurred prior to his active duty service. This opinion was based on the Veteran's own accounts of prior injuries during treatment in service, including his statement of long-standing back pain that would have predated service entrance. As a result, the examiner stated that the Veteran's low back disability clearly and unmistakably predated his military service and was not caused or aggravated thereby, but represented a natural progression of the pre-existing condition. The Board remanded the matter and asked for an addendum opinion, explaining the need for both prongs of the opinion to be expressed in terms of the "clear and unmistakable evidence" standard. In the October 2012 addendum, the examiner reiterated the opinion that, based on the Veteran's statements his low back disability clearly and unmistakably pre-dated his military service. The examiner further observed that, despite the Veteran's statements of continuity of symptomatology of low back pain, because there was no prolonged treatment in service, the Veteran's current low back disability was not aggravated in service. Despite the Board's instructions, the statements with respect to aggravation were not expressed in terms of the clear and unmistakable evidence standard. As noted above, service connection is warranted where a disability was incurred in or aggravated by service. 38 C.F.R. § 3.303. All service members are considered to have been in sound condition at the time of service entrance unless there is clear and unmistakable evidence to the contrary. Where a pre-existing disability is shown, the question becomes whether that disability worsened in service and whether any increase in disability was clearly and unmistakably the result of the natural progression of the disability. 38 C.F.R. § 3.304(b). If the worsening in service is not shown by clear and unmistakable evidence to be the result of natural progression, the presumption of soundness applies. In this case, the Veteran was accepted and enrolled for service and the induction examination did not reveal any low back disability or symptoms. The presumption of soundness, therefore, applies. His competent reports of injuries to his low back from a fall prior to service and of a history of low back pain beginning prior to service provide evidence of pre-existence. Indeed, the VA examiner agreed that, based on the history provided by the Veteran, there was a pre-existing low back disability manifested by mechanical low back pain. Other than the negative findings at service entrance, there is no evidence to the contrary. At the December 2010 examination, there was no reported history of pre-existing back disability, but there is no indication that the Veteran was asked about his pre-service history. Hence, the evidence is clear and unmistakable and shows that a pre-existing low back disability was present. The next question is to determine whether there clearly and unmistakably was no aggravation of the pre-existing back disability in service. The Veteran's low back disability appears to have been asymptomatic at the time of service entrance, with the pain growing progressively worse during the course of his military duties. The record shows that the Veteran was prescribed physical therapy and placed on profile because of the pain in his low back. In addition, the Veteran has stated that since the injury in basic training he has experienced worsening back pain. As such, a worsening of the disability in service is clearly demonstrated by the resulting limitation of functioning. Next the Board must determine whether or not there is clear and unmistakable evidence as to whether the worsening in service was due to natural progression of the disability. In that regard, the evidence attributing the worsening to natural progression of the disability is that of the VA examiner. However, the examiner has not stated that opinion in relation to the clear and unmistakable evidence standard, despite a specific request and did not discuss the implication of the intervening back injury in service. The examiner's opinion in this regard is of limited probative value and does not clearly and unmistakably show that the increase was due to natural progress. As a result, the evidence with respect to this prong fails because the record does not contain the clear and unmistakable evidence needed to rebut the presumption of soundness. Since the presumption of soundness is not rebutted, the claim is treated as one for ordinary service connection. Wagner v. Principi. The Veteran's service treatment records support his statements of an injury to his low back occurring in basic training. A March 1984 treatment note contains a diagnosis of chronic facet dysfunction and noted complaints of pain with some radiating numbness and tenderness. The current disability diagnoses include facet arthrosis. The diagnoses are consistent between the Veteran's service and the current treatment, as are the reported symptoms of pain and radiating numbness. The Veteran is competent to report such symptoms and when they began. The Board finds his statements regarding the onset and continuity of symptomatology to be consistent and credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Therefore, the Veteran's reports are sufficient to establish an in-service injury, as supported by the service treatment records. In the case of a listed chronic disease, a nexus between a current disability and an in-service injury can be established by evidence of a continuity of symptomatology since discharge. 38 C.F.R. § 3.303(b); see 38 U.S.C.A. § 1101 (West 2002). The provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology are applicable only to chronic diseases that are listed in 38 U.S.C.A. § 1101, 1112(a); 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). On the other hand, the Federal Circuit has held that lay evidence may be sufficient to establish a nexus between a current disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The examiner accepted the Veteran's statements as evidence of a pre-existing disability. The Board finds it more appropriate to accept the Veteran's statements on all counts, both as to a pre-existing disability and as to continuing symptomatology connecting the in-service disability and the present disability. Confirming evidence is not required and the absence of contemporaneous medical evidence is not dispositive. Jandreau. The Veteran's statements and his documented in-service treatment for low back pain and stiffness do, however, provide further support for his claim. Under 38 C.F.R. § 3.303(d), they are evidence that the low back disability diagnosed after service was incurred in service. The Board finds the statements to be credible. The record shows a back injury in service, ongoing treatment and symptoms since that injury and a current back disability. There is no evidence of record to directly contradict the Veteran's statements that his low back pain and other symptoms have continued ever since service. While the VA examiner ignored these statements and offers an opinion to the contrary, the opinions imply that if there had been a back injury and ongoing disability in service, a nexus to service would have been found. Resolving all doubt in the Veteran's favor, the Board finds that service connection is warranted for a low back disability. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for a low back disability is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs