Citation Nr: 1316347 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 08-02 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from May 1972 to February 1973. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The RO, in pertinent part, denied the benefits sought on appeal. The Veteran presented testimony in April 2010 before a Veterans Law Judge who has since retired from the Board. He was afforded a new hearing before the undersigned in March 2013. The transcripts have been associated with the claims folder. The matter was previously before the Board in March 2011 and remanded for further development and adjudication. In July 2012, the matter was remanded to afford the Veteran the opportunity for new hearing, which was held as delineated above. The claim has been returned to the Board and is now ready for appellate disposition. FINDING OF FACT Degenerative disc disease was incurred during the Veteran's active military service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, the criteria for service connection for degenerative disc disease have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307.3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The Board believes no discussion of compliance with the notice and assistance provisions is necessary at this time. There is no prejudice to the Veteran as the benefits sought have been granted in full. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record. The Board notes that other than the March 2013 hearing transcript, which has been reviewed in preparation of this decision, Virtual VA does not contain any additional pertinent information. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some 'chronic diseases,' such as arthritis, presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term 'chronic disease', whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429, slip op. at 13 (Fed. Cir. Feb. 21, 2013). In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran claims entitlement to service connection for a back disorder. Specifically, he testified that he did not have a back disorder prior to his enlistment on active duty but that he first injured his back in November 1972 in a motor vehicle accident. He contends his back disorder has steadily worsened since his discharge from service. He further testified that he sought treatment for his back approximately six months after his discharge from service from the Seattle VA hospital. Considering the evidence of record, summarized in pertinent part below, and in light of the applicable laws and regulations, the Board shall afford the Veteran all reasonable doubt and the claim shall be granted. 38 C.F.R. § 3.102. In this regard, service treatment records show the Veteran reported recurrent back pain on his April 1972 enlistment report of medical history. The examiner noted back strain in the past. However, the corresponding physical examination was negative for a back disorder. Notably, the Veteran's spine was evaluated as normal. In November 1972, the Veteran reported low back pain of a two-week duration following a car accident. The treatment provider indicated it was a jerking type accident. The Veteran was diagnosed with sprain. There were no further complaints in service and the February 1973 separation examination was negative for a back disorder. Post-service, the Veteran reported back problems in April 1986. He informed the medical providers that he injured his back five to six years prior when playing baseball. He indicated that he swung the bat extremely hard, but missed the ball and felt something pop in his back. He was treated by a chiropractor initially and then later by an osteopath with traction. He seemed to do reasonably well until about a year prior when he fell off a ladder and once again developed acute pain in his right hip down to his leg. A computerized tomography (CT) scan showed significant herniation of the L5, S1 disc with apparent large free fragment. There was a small bulge in the L4-5 on the left, but this was not significant. The Veteran underwent a laminectomy with diskectomy. The Veteran next complained of back pain in 1991. In August 1991, the Veteran informed his doctors that he had occasional episodes of back pain since the 1986 surgery, but with no particular precipitant. He was in his usual state of health until three days prior when he moved furniture and began having severe low back pain. A CT scan revealed status post hemilaminectomy L5-S1 on the right; abnormal soft tissue density at L5-S1 on the right (differential diagnosis included recurrent disc herniation with large free fragment versus extensive epidural fibrosis); and bilateral forminal stenosis L5-S1 right greater than left. A September 1991 magnetic resonance imaging (MRI) showed in addition to the abnormal soft tissue density, an S1 nerve root. This was consistent with a scar, but there was a question of herniated disc in association with the scar. There were also post-operative changes with L5-S1 vertebrae. A June 2010 lumbar spine x-ray showed multilevel degenerative changes, most severe at L5-S1. There were no other acute abnormalities. In April 2011, the Veteran was afforded a VA examination. The Veteran was diagnosed with past L5-S1 laminectomy and diskectomy for herniated intervertebral disc, degenerative disc disease, and right foot S1 numbness secondary to L5-S1 herniated disc. The examiner opined it was less likely than not (less than 50 percent likelihood) that the Veteran's lumbar spine condition was caused by the in service November 1972 motor vehicle accident. No rationale was provided. In March 2012, the same examiner provided an addendum opinion. The examiner opined it was his impression that the Veteran's back injury and the motor vehicle accident during service most likely aggravated his pre-existing back condition. The examiner noted the Veteran gave a history of back strain at the time of entrance examination in April 1972. The examiner further opined that the Veteran had significant injury to his back five or six years prior to surgery in 1986 and that this injury (swinging a bat) was the incident that most likely caused the herniated disc. However, the examiner stated he could not determine whether the motor vehicle accident during service caused injury to the disc that later led to disc herniation. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing; the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). But, the Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. When evaluating the ultimate merits of this claim, the Board first finds that a back disorder did not pre-exist the Veteran's active military service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. In this case, the Veteran reported recurrent back pain on his April 1972 enlistment report of medical history and the examiner noted back strain in the past. However, history provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3 2003 (July 16, 2003). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no aggravation result be "undebatable". Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261 ; id. at 263 (Nebeker, C.J., concurring in part and dissenting in part). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 . The April 1972 physical examination conducted at enlistment was negative for a back disorder. The March 2012 examiner opined it was his impression that the Veteran's back injury and the motor vehicle accident during service most likely aggravated his pre-existing back condition. A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action. Black's Law Dictionary 1067 (5th ed. 1979). Therefore, where the presumption of sound condition at entrance to service cannot be rebutted as in the instant case, the fact for which the presumption stands--that is, that the veteran was in sound condition at entry to service as to the disability for which he seeks service connection--must be assumed as a matter of law. Accordingly, service connection may not be granted on the basis of aggravation of a preexisting disease or injury in such a case. As the government has failed to rebut the presumption of soundness under section 1111, the Veteran's claim must be considered one for service incurrence or direct service connection. See Wagner, 370 F.3d at 1094, 1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). The Board finds that the evidence is in equipoise as to whether a back disorder was incurred during the Veteran' active military service. As noted above, the March 2012 VA examiner opined the Veteran had significant injury to his back five or six years prior to surgery in 1986 and that this injury (swinging a bat) was the incident that most likely caused the herniated disc. However, the examiner stated he could not determine whether the motor vehicle accident during service caused injury to the disc that later led to disc herniation. There is no opposing opinion of record and the examiner has cited a rationale for his failure to render an inclusive opinion, i.e. the post-service most likely caused the herniated disc but by the same token, the in-service injury could have caused the initial disc herniation. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (providing that the Board may accept an inconclusive VA medical report if it is "clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered 'all procurable and assembled data,' by obtaining all tests and records that might reasonably illuminate the medical analysis," but that the examiner must explain what facts cannot be determined and why) (citation omitted). See also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Further, the March 2012 examiner clearly indicates the existence of a back disability during service in concluding that during service there was aggravation of a back disability. The Board finds the Veteran's complaints of back pain since the in-service motor vehicle accident credible. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). Service connection for a back disorder is warranted. ORDER Entitlement to service connection for degenerative disc disease is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs