Citation Nr: 1317525 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 05-12 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to January 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a Board hearing at the RO in Montgomery, Alabama in June 2010. This transcript has been associated with the file. The case was brought before the Board in September 2010 at which time it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. The case was most recently before the Board in July 2012, at which time the claim was remanded again to further assist the Veteran in the development of her appeal, to include obtaining treatment records and an addendum opinion regarding the etiology of the Veteran's lumbar spine disorder. The Veteran's most recent VA treatment records were obtained and associated with the claims file. An addendum opinion was obtained in August 2012. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In February 2010 correspondence, the Veteran raised the issues of service connection for anemia and lupus. The Board has previously referred this matter to the AOJ for appropriate development and adjudication. However, a review of the claims file reveals that no action has been taken in this regard. Therefore, this matter is again referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's lumbar spine disorder is related to service. CONCLUSION OF LAW A lumbar spine disorder was incurred in active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Since the Board is granting entitlement to service connection for a lumbar spine disorder, the entire benefit sought on appeal has been granted. Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran asserts that her lumbar spine disorder is the result of a car accident which occurred on active duty in December 1980. For the reasons discussed below, the Board finds that service connection is warranted. In September 1980, the Veteran was treated with pain in her lumbar spine for the past 2 weeks and she complained of a knot in her back. There is no follow up for a back disorder. The Veteran was also seen in December 1980 following a car accident. She complained of bleeding and sore gums from hitting her face on the steering wheel. Although the Veteran's service treatment records have no defects noted for the claimed lumbar spine disorder, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology or under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. In a December 1988 private treatment record, the Veteran had complaints of back pain. In June 1990, the Veteran again reported with back pain. A January 2008 response from the Baptist Medical Center indicated the Veteran had last been seen in January 1993, but her records had been destroyed and were no longer available. The Veteran has consistently been treated with complaints of back pain. In September 1999, she had complaints of lower back pain following a car accident. In May 2001, she reported lower back pain. The Veteran's private physician provided a statement in July 2006 that he had been treating her for neck and back pain since August 2005. A June 2006 MRI showed disc protrusion and bilateral neuroformina due to facet hypertrophy. In an October 2006 VA examination report, the examiner found no evidence of trauma to the Veteran's back in service, only post-service car accidents which had caused back injuries. The examiner further opined that although the Veteran was seen in September 1980 with complaints of back pain, this was not the cause of her current back disorder. The examiner opined it was less likely than not the Veteran's lumbar spine disorder was related to service In March 2007 x-rays showed mild osteoarthritis of the lumbar spine. An October 2008 MRI showed multi level degenerative abnormalities of the lumbar spine. The Veteran was afforded a VA examination in January 2011. She reported the December 1980 car accident in addition to 3 post service car accidents. She had been receiving physical therapy and epidural injections. The examiner opined the Veteran's lumbar spine disorder was less likely than not related to the car accident in service as there was no evidence post service of back pain. He noted there was treatment for back pain following the 2006 and 2008 car accidents. In August 2012 an additional VA opinion was obtained to determine the etiology of the Veteran's lumbar spine disorder. The examiner reviewed the claims file and opined it was at least as likely as not that the Veteran's lumbar spine disorder was related to service. Her rationale was that traumatic arthritis was generally the result of an injury which triggered the body's inflammatory response. She also noted the Veteran had been in a car accident in service and currently had diagnoses of a chronic lumbar spine disorder. In a March 2013 independent medical opinion, a VA physician indicated she had reviewed the claims file, to include the Veteran's complaints of back pain in service in September 1980 and the December 1980 car accident records. She opined it was less likely than not that the Veteran's lumbar spine disorder was related to service. She opined it was at least as likely as not the Veteran's lumbar spine disorder was a consequence of the normal aging process. Her rationale was that the September 1980 complaints for back pain were due to a condition that was acute, transient, and limiting and the condition resolved. There was no history of an injury or event associated with the Veteran's back to warrant chronic lower back pain. At the very least, the Board finds the evidence is in relative equipoise. The October 2006 VA examiner did not take into account that the Veteran was in a car accident in December 1980 while in service. The January 2011 and March 2013 VA examiners did not discuss the December 1988 and June 1990 complaints of back pain following service, and prior to the 1999 car accident. The August 2012 VA examiner offered an addendum opinion after reviewing the claims file and taking into account that the Veteran was involved in a car accident in service and had subsequent back trauma. The Veteran testified at her June 2010 Board hearing that she had experienced lumbar spine pain since her December 1980 accident. The Board finds that, resolving all reasonable doubt in favor of the Veteran, the criteria for a grant of service connection have been met. As such, the Veteran's claim of entitlement to service connection is granted. 38 U.S.C.A. § 5107 (West 2002). ORDER Entitlement to service connection for a lumbar spine disorder is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs