Citation Nr: 1314259 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 03-35 677 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for low back strain. 2. Entitlement to service connection for lumbar degenerative disk disease/stenosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from August 1977 to September 1979. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO). It was remanded by the Board for additional development, most recently in September 2012. The Veteran testified at a hearing before a Veteran's Law Judge. Although that judge is no longer employed at the Board, the Veteran was afforded the opportunity for another hearing but did not avail himself of that opportunity. The issue of entitlement to degenerative disc disease is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Chronic low back (lumbosacral) strain had onset during service. CONCLUSION OF LAW Low back (lumbosacral) strain was incurred in service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board considered the regulations pertaining to the VA's statutory duty to assist the Veteran with the development of facts pertinent to his claim. Given the favorable action taken on the issue which is decided herein below, the Board finds that no further assistance in developing the facts pertinent to that claim is required at this time. Further development needed to develop the Veteran's claim for service connection for intervertebral disc syndrome is addressed in the remand portion of this decision. Service connection The Veteran contends that he has a low back disorder that is related to service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). At his hearing in September 2008 the Veteran testified that while doing squats in basic training he heard something pop in his back and he had had continuing back pain since then. He was treated with medication and bed rest. The Veteran's service treatment records reflect several complaints of low back pain, diagnosed as strains or sprains. The September 1979 discharge physical examination disclosed that the spine was normal. The Veteran's back was first examined by VA in June 1996, at which time the Veteran dated the onset of his back pain to boot camp in 1977. At that time the examiner diagnosed low back pain, rule out degenerative disc disease, degenerative joint disease. There is a notation that x-rays were to be taken, but there are no radiology reports in the claims file associated with this examination. The examiner did not express an etiology for the Veteran's back pain. VA treatment records show that at a later date the Veteran was diagnosed with degenerative disc disease. The Veteran's back was reexamined by VA in December 2012, at which time diagnoses of intervertebral disc syndrome and spinal stenosis were made. The examiner was asked to give an opinion as to the likelihood that the Veteran's back problems were related to service. The examiner's report was internally inconsistent. Concluding that the Veteran's back problems did not preexist service, she also opined that the Veteran's back problems were less likely than not related to service and that his back strains in service had resolved by the time of his discharge. However, she later wrote that the multitude of medical visits both during and after discharge documented a history of a chronic back condition. Thus, she opined that the Veteran had a chronic back condition that began service and continued thereafter. This case has been pending for over 10 years, and rather than delay this issue further the Board will resolve the ambiguity in the examiner's report in favor of the Veteran. The disorder will be characterized as low back strain since that is the diagnosis documented in the service treatment records. ORDER Service connection for low back (lumbosacral) strain is granted. REMAND Review of the VA examination and VA treatment reports reflect that the Veteran is diagnosed with degenerative disc disease and spinal stenosis. This decision has granted service connection for the low back (lumbosacral) strain. However, it is unclear whether the Veteran's current degenerative condition is related to the low back strain that began in service. An opinion should be obtained as to whether the Veteran's current degenerative disc disease and spinal stenosis was caused or aggravated by low back strain. Accordingly, the case is REMANDED for the following action: 1. Request an appropriate medical professional to provide an opinion as to whether it is at least as likely as not (at least 50 percent likely) that the Veteran's current degenerative disc disease, stenosis or arthritis was caused or aggravated (permanently made worse) by his service connected low back strain. 2. After completion of the above development, the Veteran's claim for service connection for degenerative disc disease should be re-adjudicated. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. Thereafter, if necessary, the case should be returned to the Board for appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs