Citation Nr: 1317036 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 11-17 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to January 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Prior to the current claim on appeal, the RO denied service connection for a back disability, identified at the time as a lumbosacral strain, in an unappealed February 1987 rating decision. Ordinarily this decision would be final. 38 U.S.C.A. § 7105 (West 2002). However, when VA receives relevant service department records that existed at the time of a prior final decision, VA will reconsider the prior decision without the need for new and material evidence. 38 C.F.R. § 3.156(c) (2012). In this case, VA received outstanding service personnel records in June 2009, after the unappealed February 1987 rating decision. VA is therefore required to reconsider this issue without requiring new and material evidence to reopen the claim. 38 C.F.R. § 3.156(c) (2012). In July 2010, the Veteran testified at a hearing held before a Decision Review Officer (DRO), and in June 2012 he testified at a videoconference hearing conducted before the undersigned Veterans Law Judge (VLJ). Transcripts of both hearings have been associated with the claims file. This claim was previously before the Board in September 2012, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's degenerative disc disease of the lumbar spine had its onset in service. CONCLUSION OF LAW The criteria for service connection for degenerative disc disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for degenerative disc disease of the lumbar spine. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also 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."). The law provides that a Veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. §§ 1111, 1132 (West 2002). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, 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 (2003), 69 Fed. Reg. 25,178 (2004); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that lay statements by a Veteran concerning a pre-existing condition are not sufficient to rebut the presumption of soundness. See Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a pre-existing condition). A low back disability was not noted on the Veteran's August 1978 enlistment examination. The service treatment records show that in January 1980 the Veteran was noted to have recurrent lumbosacral myalgia. In March 1980 the Veteran complained of off and on back pain secondary to walking and long distance running. It was also noted that he fell from an automobile two years prior to military service but was not treated. The Veteran's spine was normal at a December 1980 examination and on a December 1980 medical history report he reported having not had recurrent back pain. Post-service VA treatment records show that in October 1986 the Veteran reported having recurrent low back pain for the past six to seven years. The first episode was in 1978 when he fell off of a truck. It resolved with rest, and he reinjured his back during service due to heavy lifting. The Veteran was diagnosed with recurrent paraspinal strain. X-ray examination showed slight anterior wedging at T-12 and L1; no evidence of spondylolisthesis, spondylolysis or fracture; and minimal scoliosis. Disc spaces were well maintained, and there was mild straightening of the lumbar spine. VA treatment records from 1991 contain repeated complaints of low back pain. At an examination for his back in April 2009 for a Social Security claim, the Veteran reported that he had had problems with his back since Hurricane Katrina. He said that he had problems with his back during military service and that he was discharged because he could not adapt to military life. On examination there was palpable tenderness. The Veteran was diagnosed with pack pain with a history of degenerative joint disease. The Veteran testified at the July 2010 DRO hearing that he did not have pain and did not seek treatment after the accident a couple of years prior to service. He further testified to having had back problems after service without a post-service injury. At the June 2012 Board hearing the Veteran's representative said that wire system installers in the Army, which was the Veteran's military occupational specialty, must carry heavy equipment. The Veteran testified that there was an incident during military service in which he slipped and fell 10 to 20 feet down a telephone pole. The Veteran said he did not report this incident because he was determined to make it in the Army. He further testified that his back condition began in military service. In July 2012 a cousin of the Veteran wrote that the Veteran hurt his back during military service and that the injury did not resolve. The Veteran had had recurring and persistent problems over the years and was unable to sit or stand for long periods of time or to lift anything heavy. The Veteran's aunt wrote in a July 2012 letter that she noticed that after military service he had problems with his back and had difficulty performing construction work. His back condition had gotten worse over the years. In September 2012 a work supervisor wrote that the Veteran has reported back pain that prevented him from performing some tasks or accepting some jobs. The Veteran had a VA examination in December 2012 at which he complained of constant low back pain and trouble bending, standing, walking or sitting for prolonged periods. He said that he injured his back in service when he fell from a pole and that he did not go to sick call or report the injury. Current treatment was taking hydrocodone and morphine, which was given to him for cancer treatment. The Veteran used a cane and a back brace. The examiner diagnosed the Veteran with degenerative disc disease based on a September 2010 MRI. The examiner's opinion was that the degenerative disc disease was less likely than not incurred in or caused by service. The rationale was that the in-service diagnosis of a low back strain was a common condition that is usually an acute event. The examiner also noted that the initial back injury occurred prior to the Veteran's military service and it was unlikely that it was aggravated beyond its natural progression by military service and was more likely than not aggravated by his post-service work as a cook and a nursing aide. Probative value cannot be given to the examiner's opinion that the back disability was unlikely to have been aggravated beyond its natural course during military service because the clear and unmistakable standard was not used. See VAOPGCPREC 3-2003 (2003); Wagner, 370 F.3d at 1096. Here, the Veteran's low back was evaluated as normal at service entry. The service treatment records show significant treatment for back problems and the lay evidence, both from the Veteran as well as from others who had first-hand knowledge, reflects that the Veteran has had recurrent back problems since service. In light of the diagnosis of degenerative disc disease of the lumbar spine by the December 2012 VA examiner, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for degenerative disc disease of the lumbar spine is warranted. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). ORDER Service connection for degenerative disc disease of the lumbar spine is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs