Citation Nr: 1315302 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 09-50 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a low back disability, to include residuals of a low back injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to April 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal of a decision in December 1979 of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for residuals of a low back injury. In June 2010, the Veteran appeared at a personal hearing at the RO. A transcript of the hearing is in the Veteran's claims file. In two separate April 2009 rating decisions, the RO reopened and denied the Veteran's claim for entitlement to service connection for a low back disability, to include residuals of a low back injury (listed by the RO as a back condition, and as degenerative disc disease of the lumbosacral spine with lumbar radicular pain syndrome, respectively) on a de novo basis. However, the Veteran originally filed a claim for residuals of a low back injury in April 1979. In a December 1979 decision (issued in letter), the RO denied the Veteran's claim. The RO specifically indicated that there was difficulty in obtaining the Veteran's service treatment records. The RO also requested that the Veteran forward any service treatment records in his possession so that they might be considered in the determination of his claim. The Veteran's official service department records were subsequently obtained and associated with the claims file. As additional official service department records have been received relating to the Veteran's claim, VA must reconsider the Veteran's claim for entitlement to service connection for a low back disability, to include residuals of a low back injury, without regard to the finality of the December 1979 RO decision. 38 C.F.R. § 3.156(c) (2012). The issue has been recharacterized to comport with the evidence of record. FINDING OF FACT The Veteran's low back disability, to include residuals of a low back injury, began during service. CONCLUSION OF LAW The criteria for service connection for a low back disability, to include residuals of a low back injury, have been met. 38 U.S.C.A §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal as to the issue of entitlement to service connection for a low back disability, to include residuals of a low back injury. 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. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for a "chronic disease," may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The Veteran contends that he has a low back disability, to include residuals of a low back injury, that is related to service. He specifically maintains that he was treated for low back problems on many occasions during service. He also reports that he was treated for low back problems in December 1976, within a year of his separation from service in April 1976, and for continuous low back problems since that time. The Veteran indicates that subsequent low back injuries were exacerbations of the low back problems he originally suffered during service. The Veteran's service treatment records show that he was treated for low back complaints on multiple occasions. A November 1974 treatment entry noted that the Veteran was seen for pain in his back. The examiner reported that the Veteran had minimal tenderness on the right side above the pelvis and that the range of motion of the Veteran's lumbar spine was normal. The impression was a muscle spasm. A March 1975 entry indicated that the Veteran was treated for a gouging abrasion of the distal end of the left little finger, as well as for lower back strain. It was noted that he was given a light duty chit. A subsequent March 1975 entry noted that the Veteran complained of back pain in the lumbar area that would radiate down his legs at times. The impression was malingering. Another March 1975 entry, on that same day, indicated that the Veteran reported that he had pain in the low back that radiated down both gluteal regions. The examiner reported that the Veteran had decreased lumbar lordosis and no tenderness in the spine or sciatic notch. It was noted that straight leg raising was normal on the right side and that it caused pain on extreme flexion on the left side. The impression was lumbar strain. Another March 1975 entry, three days later, noted that the Veteran complained of current back pain. He stated that he hurt his back at the rifle range lifting targets. It was noted that the Veteran worked in Charlie Company as a construction worker. A subsequent March 1975 entry indicated that the Veteran had suffered from a back condition since November 1974. The impression was lumbar strain, no improvement with previous treatment. Another March 1975 entry, by another examiner on that same day, noted that the Veteran had intermittent right and left unilateral, and possibly bilateral, pain across the lower back. It was noted that the onset of pain occurred while the Veteran was at a range lifting targets. The Veteran reported that the pain radiated into both of his buttocks. The impression was chronic lumbar paraspinous muscle strain presently essentially asymptomatic. A further March 1975 treatment entry noted that the Veteran complained of back pain for two months. The impression was, as above, see previous entries, lumbar sprain. A May 1975 entry noted that the Veteran complained of continuing mild back pain. The Veteran reported that the pain had remained the same and that he was concerned because his father and other relatives had disc problems. The impression was, as above, with probably a large psychiatric overlay. An April 1976 separation examination report included a notation that the Veteran's spine and other musculoskeletal systems were normal. Post-service private and VA treatment records show treatment for variously diagnosed low back problems, including intercurrent injuries, on numerous occasions. For example, a December 1976 treatment report from the Memorial Hospital, within one year of the Veteran's separation from service in April 1976, indicated that he injured his back the previous day while stooping with tools in his hands. It was noted that the Veteran sustained low back pain with radiation of the pain down his right leg. The examiner reported that the Veteran described pain of such intensity for the first time and that he had no weakness or numbness in his foot. The examiner stated that he had treated the Veteran in the past for back difficulty. The examiner indicated that on examination, the Veteran had discomfort with flexion and extension of his back with protective muscle spasms in the lower back. It was noted that the Veteran had positive leg raising on the left with some contralateral pain to the right. The examiner stated that it was felt that the Veteran's pain was mostly muscular in nature. The examiner reported that the Veteran was seen in consultation by another physician who also felt that he had an annulus tear of the 4th or 5th lumbar discs. It was noted that a myelogram showed that the conus region was unremarkable with extra-dural defects. The discharge diagnosis was acute low back strain. An April 1979 statement from Dr. L. M. Vanderhoof, a chiropractor, indicated that the Veteran had been under her care for low back problems since 1978. Dr. Vanderhoof stated that the Veteran should be restricted to light duty with no lifting of any object heavier than ten pounds. A July 1985 radiological consultation report from the Saint Vincent Hospital, Inc., as to a computed tomography scan of the Veteran's lumbar spine, related an impression of herniated discs at L3-L4 and L4-L5. An August 1985 discharge summary from the Saint Vincent Hospital indicated that the Veteran lifted drywall in May 1985 and suddenly complained of low back pain without radiation. The Veteran reported that the localized low back pain initially improved after two weeks of bed rest, but that when he returned to work, and after a week of full duty, he exacerbated his low back pain in the same manner. He stated that he had radiation of the posterior and lateral thigh of the right leg to the ankle that was more localized distally. It was noted that the Veteran also complained of slight left proximal thigh tingling. The Veteran reported that his symptoms were exacerbated by bending, straightening, and sitting for long periods of time. He denied that he had any bowel or bladder symptoms. The examiner stated that the Veteran was admitted for suspicion of a herniated nucleus pulposus and for a myelogram. The examiner reported that the Veteran gave a history of having some lumbar muscular strain ten years earlier. It was noted that the Veteran underwent a discectomy on the right at L4-L5. The discharge diagnoses were a herniated nucleus pulposus on the right, L4-L5, status post right discectomy at L4-L5, as well as a central bulge at L3-L4. A September 2008 treatment entry from Advanced Diagnostic Pain Treatment Center, P.C., indicated that the Veteran carried a diagnosis of chronic low back pain that had been refractory to conservative treatment and two surgical discectomies. It was noted that the Veteran had also not responded to epidural injections. The diagnoses included mechanical low back pain; a history of degenerative disc disease and discectomy times two; bilateral neurological sensory losses at L5 and S1; and recent urinary urgency. In a June 2009 lay statement, the Veteran's father reported that the Veteran was visited by his parents and two of his siblings while hospitalized at the Memorial Hospital sometime in the winter of 1976 or 1977. He stated that while the Veteran was hospitalized, he underwent a spinal myelography and was found to have a herniated disc. It was noted that the Veteran was placed in traction for a few days. A September 2009 VA pain management consultation note indicated that the Veteran was an extremely poor historian and that he was unable to recall many details and/or completely describe his pain. It was reported that the Veteran had a history of both chronic low back pain and neck pain, both of insidious onset, but exacerbated by a motor vehicle accident in 2007. The Veteran stated that his low back dated back to 1976 when he developed a herniated disc, which was diagnosed pursuant to a myelogram. He indicated that he then experienced the same disc problems in 1986 and 1992, and underwent surgeries, possibly discectomies/laminectomies, on both occasions, respectively. The Veteran stated he rear-ended a motor vehicle in 2007 and that he believed that he possibly underwent an epidural steroid injection at that time. It was noted that the Veteran was unable to accurately describe his low back pain. The Veteran reported that he had pain in the lower back, midline, which occasionally radiated down the lateral aspect of both lower extremities and possibly to his feet, left greater than right. The assessment included failed back syndrome. A November 2009 VA treatment entry noted that the Veteran was referred for pain management. The examiner reported that the Veteran had a previous diagnosis of failed back syndrome, status post laminectomies in 1986 and 1997, and a subsequent motor vehicle accident in May 2007. It was noted that the Veteran also had a history of opiod abuse. A diagnosis was not provided at that time. A December 2009 VA treatment report related an impression that included bilateral foot pain possibly due to peripheral neuropathy, and status post L4-L5 hemilaminectomy, spinal stenosis at L3-L4 and L5-S1, with facet arthropathy at L4-L5, and L5-S1. The examiner reported that the Veteran had clinical evidence of neurogenic claudication, but that he reported that his low back had improved. The medical evidence shows that the Veteran was treated for low back problems on numerous occasions during service, including complaints of radiation of pain down his gluteal regions and legs. He was variously diagnosed with muscle spasms, lumbar strain, and chronic paraspinous muscle strain. Additionally, post-service private and VA treatment records reflect that the Veteran was treated for low back problems on numerous occasions, including soon after his period of service. The Veteran was also treated for intercurrent injuries. A December 1976 treatment report from the Memorial Hospital, approximately eight months after his separation from service, indicated that the Veteran had been treated in the past for back difficulty, and related a diagnosis of acute low back strain. An April 1979 statement from Dr. Vanderhoof stated that she had treated the Veteran since 1978. An August 1985 discharge summary from the Saint Vincent Hospital noted that the Veteran complained of low back pain after lifting drywall in May 1985, and indicated discharge diagnoses of a herniated nucleus pulposus on the right, L4-L5, status post right discectomy at L4-L5, as well as a central bulge at L3-L4. The Veteran has continued to receive treatment for variously diagnosed low back disabilities since that time. The Veteran is competent to report low back symptoms in service, continuous low back symptomatology since service, and current symptoms that form the basis for diagnosis of disability, and the Board finds that the Veteran's account of in-service occurrence and continuity of symptoms to be credible. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board finds that the evidence shows that the Veteran has a low back disability, to include residuals of a low back injury, that had its onset during his period service. The Veteran originally filed his claim for service connection for a low back disability, to include residuals of a low back injury, on April 25, 1979. The Veteran's claim for service connection has been pending since that time. See 38 C.F.R § 3.156(c). Accordingly, service connection is warranted, effective April 25, 1979. ORDER Service connection for a low back disability, to include residuals of a low back injury, is granted, effective April 25, 1979. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs