Citation Nr: 1313437	
Decision Date: 04/22/13    Archive Date: 05/03/13

DOCKET NO.  11-17 776	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to service connection for degenerative joint disease of the lumbosacral spine with spinal stenosis.  


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Terrence T. Griffin, Counsel








INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c) (2012), the appeal has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran had active service from March 1951 to March 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision of the Cleveland, Ohio, Regional Office (RO.  

Consistent with the evidence of record and to most accurately reflect the benefit sought, the claim on appeal has been recharacterized on the title page.  

The Board remanded the appeal for additional development in March 2012 and October 2012.  


FINDING OF FACT

Degenerative joint disease of the lumbosacral spine with spinal stenosis had its onset during combat in Korea.  


CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for degenerative joint disease of the lumbosacral spine with spinal stenosis have been met.  38 U.S.C.A. §§ 1110, 1131, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 



REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  The Board is granting in full the benefit sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.   

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).  

A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77.  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra.  

In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d) are applicable.  This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence.  If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  In the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury.  Id.  

The Veteran's complete service treatment records are not available because they are fire-related; however, available service treatment records are negative for any lumbar spine related complaint or treatment. 

The June 2010 VA examination report documents the Veteran's report of sustaining back trauma/stain while engaged in combat operations and of the persistence of the corresponding symptoms (e.g., pain) since this in-service occurrence.  Citing the absence of any medical documentation of any in-service back treatment, complaint or trauma and the first medical evidence of relevant symptoms being generated within the "last two decades," the examiner stated that "as best as I can determine" the lumbar spine condition is not related to military service.  

In an October 2012 addendum opinion, the examiner again cited the absence of medical evidence documenting in-service treatment trauma or complaints and there only being medical evidence of lumbar spine treatment many years after separation to support the opinion that the lumbar spine disability was likely related to aging and not military service, including any accumulated trauma during service.  

The Veteran provides a competent and credible account of combat related lumbar spine wear-and-tear/trauma and of persistent symptoms since service.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  His account as to these matters has been generally consistent, including solely for the purpose of seeking medical care and treatment.  Available service department records and the duties likely associated with his Military Occupational Specialty (MOS) also tend to corroborate the Veteran's report of combat related lumbar spine wear-and-tear/trauma.  In connection with another matter, VA also confirmed that the Veteran engaged in combat during the Korean War.  See VA Memorandum, Jul. 27, 2009.  The aggregate of these factors render the Veteran's statements as to these matters competent, credible and highly probative.  

Both the June 2010 VA examination opinion and October 2012 VA addendum examination opinion are incomplete, inadequate, and of no probative value.  

The examiner fails to adequately address the Veteran's competent, credible and highly probative account of combat related lumbar spine symptomatology and wear-and-tear/trauma.  See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007).  Both opinions improperly rely largely, if not entirely, on the absence of corroborating medical evidence, neglecting to consider or address the competent, credible and highly probative lay evidence of record.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The Veteran served in combat in Korea and the duties associated with his MOS likely resulted in lumbar spine wear-and-tear/trauma; his account of lumbar spine trauma is consistent with the circumstances, conditions and hardships of that service, requiring VA to presume the occurrence of the in-service injury.  38 U.S.C.A. § 1154(b).  

The Veteran has been diagnosed with degenerative joint disease of the lumbosacral spine with spinal stenosis, and he reports the onset of the condition during combat service in the Korean War.  He provides a competent and credible account of lumbar spine symptoms since serving in combat in Korea; and of experiencing lumbar spine symptoms regularly since that time.  

The evidence is not sufficient to rebut the presumption that his degenerative joint disease of the lumbosacral spine with spinal stenosis became manifest during his combat service and, accordingly, service connection for degenerative joint disease of the lumbosacral spine with spinal stenosis is warranted.  




ORDER

Service connection for degenerative joint disease of the lumbosacral spine with spinal stenosis is granted.  



____________________________________________
RONALD W. SCHOLZ 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs