Citation Nr: 1315335 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 08-35 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine (low back disability). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1976 to July 1979 and from July 1982 to June 1986. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for his claimed lumbar spine disability. This case has been remanded by the Board in July 2010 and December 2010 for additional development. FINDING OF FACT The Veteran's low back disability is reasonably shown to have had its onset during his active service. CONCLUSION OF LAW The criteria for service connection for a low back disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5017 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Inasmuch as this decision grants the appellant's claim, there is no reason to belabor the impact of the VCAA on this matter, since any notice error or duty to assist omission is harmless. Accordingly, the Board will address the merits of the claim. Legal Criteria 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; 38 C.F.R. § 3.303(a). Service connection requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the 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. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Factual Background and Analysis The Veteran contends that his currently diagnosed low back disability is related to an in-service injury, namely a back injury sustained after falling off a truck during basic training. The Veteran's service treatment records (STRs) reflect continued complaints of low back pain. A July 1976 record noted back pain after running. The impression was muscle strain. In September 1977, the Veteran reported low back pain since basic training. The assessment was low back strain, psychomotor component. That same month, another treatment record noted multiple low back pain complaints since entry into the army (began in basic training). The record noted that the Veteran has been seen multiple times with no pathology found. In December 1977, a record noted the Veteran complaining of recurring low back pain. A January 1978 record noted that the Veteran's lower back was tender and that bilateral muscle spasms were present. The physician further noted that range of motion was adequate but there was some hesitancy. The assessment was chronic bilateral muscle spasms. February and March 1978 records noted chronic low back pain. In a May 1979 separation report of medical history, the Veteran reported recurrent back pain. However, a subsequent examination revealed no back complaints, treatment, or diagnoses related to the back. In March 1982, the Veteran reported back pains since his first period of service. A June 1982 X-ray of the lumbosacral spine revealed no evidence of bone or joint abnormalities. Regarding his second period of service, a May 1982 entrance report of medical history noted recurrent back pain. In September 1982, the Veteran was seen complaining of back pains while doing the airborne shuffle. There was pain on palpation to lower back L4-5; no spasms were felt. The assessment was mechanical back pain. In March 1984, the Veteran complained of back pain, which started while running that morning. He described it as a sharp, stabbing pain. The physician noted low back pain; mild strain. That same month, the Veteran was seen again for back pain. He reported pain since suffering a back injury in 1976 after a fall. The diagnosis was muscle spasm. A July 1985 record noted a chief complaint of a back injury. On May 1986 report of medical history, the Veteran reported being in fair health, but did not report any back problems. A May 1986 separation examination was negative for any back etiology. Post-service treatment records reflec continued complaints of chronic low back pain. In April 2008, the Veteran was diagnosed with displacement of lumbar intervertebral disc. August 2009 X-rays revealed mild lumbar spondylosis. In a statement dated October 2008, a private physician currently treating the Veteran in her pain clinic with injections for back pain, opined that considering the Veteran's in-service complaints and post-service VA treatment, to include the July 2006 MRI which revealed mild posterior protrusion of disc material, generalized bulging of disc material, degenerative disc changes, and scattered bony degenerative changes, the Veteran's current back complaints are related to service. The Veteran was afforded a VA examination in January 2009. The examiner diagnosed low back strain and opined that this is less as likely as not related to his history of lumbar strain while in the service. The examiner cited the normal lumbar spine X-ray in 1982 which did not show degenerative changes and disc disease. Here, there is evidence of a current low back diagnosis as well as an abundance of evidence documenting low back complaints during both of the Veteran's periods of service. However, there are conflicting opinions about whether the current back diagnosis is related to service. The Board finds that the probative value of the opinions is in relative equipoise. As for the VA opinion, the Board notes that the VA examiner noted a review of the claims file and service treatment records, but noted that he did not review any private treatment records. Thus, it appears the VA examiner did not consider the private medical opinion. Additionally, the Board notes that the examiner based his negative nexus opinion on the 1982 X-ray noting no degenerative changes or disc disease, but there is no indication in the examination report that the examiner considered the many records noting back pain from the Veteran's first period of service and how these records may or may not be related to his current back symptomatology. As for the private opinion, while the private physician opined that the Veteran's current back problems are related to his in-service back problems, she does not include the bases for her opinion. However, although the private opinion did not specifically define her reasons for her opinion, she did note that she had been treating the Veteran for his current back pain, which infers that she was somewhat familiar with his condition. In addition, she noted the Veteran's STRs documenting multiple visits for back pain and a diagnosis of chronic low back pain, as well as current MRI findings, which again suggests to the Board that she is familiar with the Veteran's history and continuing treatment for back symptomatology, which leads the Board to conclude that she had a basis for her positive nexus opinion. Additionally, this physician's opinion is more consistent with the evidence of record reflecting continuous complaints of low back pain in service and continued treatment for low back problems since. Accordingly, the Board finds that the October 2008 private physician's opinion affirmatively relating the Veteran's low back disability to service should be given more probative weight. Therefore, given the wealth of evidence of in-service low back complaints, the Veteran's report of continuity of symptomatology since service, and the more probative private medical opinion affirmatively relating the Veteran's low back disability to service, the Board concludes that a basis for granting service connection for a low back disability has been presented; the Veteran's appeal is granted. ORDER Service connection for a low back disability is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs