Citation Nr: 1317655 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 11-05 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran had active service from September 2006 through December 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge and the hearing transcript is of record. By a decision dated in February 2012, the Board denied the appellant's claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2012 Order, the Court granted a December 2012 Joint Motion for Remand (JMR), vacating the February 2012 Board decision and remanded the case to the Board for further consideration. FINDINGS OF FACT 1. The medical evidence clearly and unmistakably shows that the Veteran's back disability pre-existed service. 2. The medical evidence does not clearly and unmistakably show that the Veteran's back disability was not aggravated by such service. CONCLUSION OF LAW Lumbar degenerative disk disease was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 5107(b) (West 2002); 38 C.F.R. § 3.303, 3.304 (2012); VAOPGCPREC 3-2003 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). 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). A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003. In Wagner v. Principi, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, when no pre-existing condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. 370 F.3d 1089, 1096 (Fed. Cir. 2004). Therefore, pursuant to Wagner, to rebut the presumption of soundness under 38 U.S.C.A. § 1111, there must be clear and unmistakable evidence that (1) a Veteran' s disability existed prior to service, and (2) that the pre-existing disability was not aggravated during service. See id.; see also VAOPGCPREC 3-2003. The second prong may be rebutted with clear and unmistakable evidence establishing that either (1) the disability underwent no increase in severity during service, or (2) any increase in severity was due to the natural progression of the condition. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Wagner, 370 F.3d at 1096). By "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity 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 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). Private treatment records showed that the Veteran received regular chiropractic treatment, from August 2001 through September 2006, for various complaints, including mid and low back pain. In August 2001, she was seen after a slip and fall at a bowling center. An x-ray report at that time showed lumbar hypolordosis, pelvic unleveling, nucleus pulposus at inferior end plate of L5, and bony irregularity noted of S1 spinous. An August 2001 initial neurological consultation by Nevada Neurological Consultants, Inc., showed that the Veteran was evaluated for low back pain after her slip and fall at the bowling alley. It was noted that lumbar spine x-rays reportedly showed a probable posterior compression at S2. The impression was low back pain with radiation into the right lower extremity, suggestive of lumbosacral radiculopathy, and rule-out large disc herniation. An x-ray of the lumbar spine and sacrum, dated in September 2001, showed a probable sacral fracture with fragment depression into the sacral canal between S1 and S2, and these osseous changes were noted to possibly reflect rudimentary S1 disc space with congenital defect of the posterior sacral wall, consistent with a verbal medical history given by the Veteran, but clinical correlation was required. The x-ray report also indicated that there was no radiographic evidence of acute lumbar fractures or frank dislocation. On a follow-up visit at Nevada Neurological Consultants, Inc., in September 2001, electromyography (EMG) showed no evidence of right lumbosacral radiculopathy or sciatic neuropathy, and the Veteran continued to experience low back pain with radiation into the right lower extremity. A magnetic resonance imaging (MRI) scan of the lumbosacral spine from September 2001 was noted to be negative, and it was noted that there was no evidence of fracture identified in the lumbosacral spine, including the S1/S2 level. In the report of the September 2001 MRI of the lumbosacral spine, the impression was negative MRI of the lumbar spine for age, and no significant disc herniation or spinal stenosis identified. Thereafter, in a letter dated in December 2001, the Veteran's private chiropractor, Dr. T, indicated that the Veteran's initial complaint in August 2001 was sacral pain, with pain into her right hip, leg, and foot, with severe muscle spasms. It was noted that she had a slip and fall incident and fell on her buttocks, tried to stand up, and fell again on her right hip. She was x-rayed and examined and her initial treating diagnosis was lumbosacral sprain/strain. Dr. T further noted that later in August, she was playing a game of volleyball and jumped to hit a ball and when she came down she felt severe low back, hip, and leg pain on the right. Dr. T indicated that the Veteran continued to have aggravation of her sacral pain and opined that it appeared there was an indication of some inflammation around the sacral conus area of the cord, and because of her continued and localized pain a computed tomography (CT) scan was suggested to rule out a possible fragment caused by the fall. It was noted that the Veteran continued to treat with chiropractic care, deep tissue trigger point therapy, and sitting on a donut cushion at work and during car trips. Dr. T also noted that the Veteran's pain had diminished significantly, but she continued to have frequent acute aggravation, which may require further evaluation and a second opinion. Private treatment records showed that the Veteran continued to receive regular chiropractic treatment through September 2006. In March 2006, her diagnoses included thoracic subluxation and thoracic pain. In August 2006, her diagnoses included lumbar subluxation, sacroiliac subluxation, and lumbalgia. Service treatment records show that the Report of Medical Examination, dated in July 2006, indicates no spine, other musculoskeletal conditions. In November 2006, the Veteran complained of lower back pain, and the diagnosis history was noted to be include lower back sprain, no lumbar disc degeneration, and no herniated intervertebral disc. Later in November 2006, she was seen for complaints of backache, which was noted to be chronic and EPTS (existing prior to service). In a report of the EPSBD (entrance physical standards board) proceedings, dated November 15, 2006, it was noted that the Veteran complained of continuing and increase right hip pain since arriving at Fort Leonard Wood, but she denied any specific injury at Fort Leonard Wood. She reported a long history of hip and back pain prior to military service, and her lengthy medical records dating back to 2000 were available for review and covered both her chronic back pain and chronic hip pain because of dislocation of her right hip. She had ongoing therapy until two days prior to shipping to Fort Leonard Wood, and those therapy visits were noted to be two to three times a week. It was noted that she had significant limitations of activity prior to military service, due to her chronic back and hip disabilities. In a November 2006 Department of the Army memorandum, it was noted that the Veteran had been diagnosed with chronic right hip pain and chronic backache, and denied any specific injury while at Fort Leonard Wood, but had increasing pain with strenuous activity. It was noted that she had been in rehabilitation program in physical therapy for three plus weeks, without significant improvement. It was also noted that she had a long history of hip and back pain prior to service, and that her lengthy medical records dating back to 2000 were available for review and covered both her chronic back pain and chronic hip pain because of a dislocation of the right hip. The final diagnosis was chronic right hip pain and chronic back pain, EPTS (existing prior to service). The history of the Veteran's problems in her unit were listed, and showed that she began complaining of hip pain in October 2006, and was given crutches, put on bed rest, and placed on a profile. She participated in a physical therapy program for her chronic hip and backache in October and November 2006, and was removed from training on November 8, 2006, based on the profile and recommendations of P.A.s. Thereafter, a P.A. initiated the EPTS for chronic hip pain. The observations of the Veteran's company chain of command was that she would not be able to participate in the physical and training aspects of Army life, and the decision was made to not retain the Veteran. A report of an MRI of the lumbar spine from Desert Radiologists, showed that in December 2006, the Veteran underwent an MRI for pain she experienced after a fall approximately a month prior. The impressions were mild degenerative changes of the lower lumbar spine with some lateral disc bulging at the L4-5 level which did not crowd the exiting left nerve root at this level. Private treatment records from Centennial Spine and Pain Center showed that in January 2007, the Veteran was seen for complaints of low back pain that radiated into the lower extremities, primarily on the left. She described two incidents in service where she fell and landed on her back, and indicated that as soon as she returned home from service, she saw a Dr. L for treatment and he prescribed medications and ordered an MRI. The diagnosis was disc bulge, L4-L5. In March 2007, she was seen for an initial pain assessment, and she reported that her pain started in October 2006, and that the cause of her pain was from when she fell in the Army. She reported that she fell on her back in October 2006 while doing an obstacle course for training, and she was seen by a physician's assistant who evaluated her, ordered an MRI, and prescribed pain medications. She also reported she suffered a second fall right before her graduation from basic training in December 2006, when she slipped and fell on the snowy and icy ground, landed on her back, and experienced immediate pain in her low back. She indicated she was not able to be seen by a provider at that time because she was in the process of being discharged from the Army. She was attending physical therapy, which provided moderate relief, but it was only temporary. The assessment was left trochanteric bursitis, lumbar disc displacement, lumbar facet arthropathy, and lumbar radiculopathy. She continued to be seen for back pain, and underwent epidural injections in April, May, and June of 2007. A CT scan of the lumbar sacral spine, dated in August 2007, revealed findings suggestive of some degree of annular fiber disruption posteriorly and to the left; multi-level facet degenerative changes, and disk bulging at multiple levels, but no focal herniations. Private treatment records from Valley Hospital Medical Center showed that in September 2007, the Veteran underwent two surgical procedures on her back. The indications for the surgery included that she had a long history of multiple years of low back pain and lower extremity radiculopathy, severe in the left, and that she had failed all non-operative treatments offered to her. For the first procedure, the pre-operative diagnosis was chronic back pain secondary to internal disc disruption, L3-4, L4-5, L5-S1, and she underwent anterior retroperitoneal approach with mobilization of aorta, vena cava, left and right iliac arteries and veins; and an anterior diskectomy interbody fusion of L3-4, L4-5, L5-S1. For the second procedure, the pre-operative diagnoses included L3-S1 disk protrusion internal derangement, L3-S1 lumbar stenosis, low back pain, lower extremity radiculopathy, and status post anterior lumbar interbody arthrodesis. The second procedure performed included bilateral posterolateral lumbar arthrodesis, L3-4, L4-5, L5-S1; wide decompressive laminectomy, decompression of spinal cord, neural foramen and nerve roots at L3-4, L4-5, L5-S1; and bilateral transpedicular segmental instrumentation at L3-S1. In a treatment note dated in July 2007, Dr. S.S. indicated that the Veteran complained of low back pain described as stabbing and throbbing and radiating into the left lower extremity. The condition was noted to have started in October 2006 and had been notably worse in December 2006 which was experienced while she was at boot camp at the U.S. Army. The Veteran was noted to have been diagnosed with degeneration and posterior bulging at the L4-L5 as well as mild degeneration and bulging at the L3-L4 and L5-S1 levels on MRI of the lumbosacral spine. After examination the Veteran was diagnosed with clinically, left lumbar radiculopathy; degenerative disk disease of the lumbar spine; and myofascial pain, lumbar paraspinal muscles. Treatment records from Bone and Joint Specialists show that in June 2007 the Veteran reported that her symptoms began in October 2006 when she fell while she was in the army and her symptoms subsequently worsened. In March 2008, she was noted to have had significant improvement over the prior three months, and had no leg or radicular symptoms. An x-ray showed what appeared to be a solid arthrodesis and instrumentation in appropriate positioning. In October 2008, she noted good improvement over the last three months, and stated she was 80 percent better than she was before the surgery. She had no radicular symptoms, and some mild occasional backache after a bad day. It was noted that she was doing well post-operatively, and the plan was to increase her activities. She was to be seen again in a year, if she was having symptoms, otherwise, on an as needed basis. In support of her claim, in August 2009, the Veteran submitted her own personal lay statement as well as lay statements from her friends, family, and employer. In her statement, the Veteran reiterated the two incidents in service where she reportedly injured her back in a fall, and she also reported that since her surgery in September 2007 her activities of daily living and recreational activities were severely and/or completely limited. In the other lay statements, her friends, family, and employer, provided individual assessments of the Veteran's back condition, but all basically indicated that they observed that the Veteran's physical abilities (recreational and daily living activities) were limited due to back injury in service, and were further limited by her post-service back surgery in 2007. The Veteran's employer noted that he had a business relationship with the Veteran prior to her active service and that prior to service she was very active and that he did not notice any physical problems that prevented her performing her daily business activities. The employer noted that after service she had back disabilities. On VA examination in November 2010, the Veteran reported constant low back pain, recurrent hip pain, and recurrent pain radiating to the legs. She walked unaided, and had not worn a back brace in the past year. She could walk between a quarter and a half mile on flat and level land, and avoided uneven terrain or steep inclines. She also complained of an unsteady gait and fell six to eight times in the past year. The diagnosis was status postoperative anterior and posterior lumbar reconstruction with residuals. The examiner opined that, based on the medical reports reviewed, the Veteran had a pre-existing lumbosacral condition which caused back pain and radiating pain into the hip and occasionally the leg. It was noted that the Veteran was treated by her own physician just prior to enlistment in August 2006, complaining of right hip pain, aggravated by running. Within several weeks after enlistment, she complained of escalation of back and hip pain, which did require treatment. She was found unfit for service and was discharged in December 2006. The VA examiner found that the facts spoke for themselves, and opined that the Veteran clearly had a pre-existing low back condition just prior to entrance into active service, and based on the duration of the complaints over many years, she had a chronic low back condition. The examiner further indicated that it was evident that during service, the Veteran experienced an escalation of low back symptoms, however, there was no written medical evidence of direct injury occurring during the Veteran's active duty. The examiner opined that the Veteran did experience an escalation of symptoms of an acute and transient nature, but that this less likely as not caused acceleration or permanent aggravation of her present chronic pre-existing back injury. The examiner explained that diagnostic studies completed prior to and just after release from active duty indicated that the Veteran did not have ruptured multiple level lumbar discs, and that CT scans and MRI studies did not confirm a herniated disc immediately after discharge. The examiner further noted that the diagnostic studies at a later date indicated multiple level disc ruptures, which in turn required extensive lumbar reconstruction, and noted that the natural history of a chronic low back condition was consistent with the development of multiple level degenerative disc disease. The examiner indicated that the Veteran had multiple symptoms of radiculitis, and there was no medical evidence that the Veteran's active duty caused an acceleration of the degenerative disk changes or caused a rupture of the disk during active military service. At a hearing before the undersigned Veterans Law Judge in November 2011 the Veteran reported that she did not have a back problem prior to service. She reported that she worked for a chiropractor and that she had adjustments to maintain her spine during that time period. She indicated that she had no real symptoms going into service. She stated that no back problems were noted upon her Military Entrance Processing Station (MEPS) testing, that she injured her back in service, and that she has had back problems ever since service. The Board finds that entitlement to service connection for degenerative disc disease of the lumbar spine is warranted. The Veteran's service treatment records reveal that upon examination at entrance to service the Veteran was not noted to have any spine or other musculoskeletal disabilities. As such, the Board finds that the presumption of soundness applies to the Veteran. The record reveals that the Veteran had an extensive history of back pain and treatment prior to entrance into active service. In addition, upon examination in November 2010 it was found that the Veteran clearly had a pre-existing back condition just prior to entrance into active service. As such, the Board finds that there is clear and unmistakable evidence that the Veteran's back disability pre-existed service. However, review of the Veteran's service treatment records reveal that the Veteran had extensive complaints of increasing back pain during service and that she was treated for her back pain during service. A VA examiner in November 2010 rendered the opinion that although the Veteran did experience an escalation of symptoms of an acute and transient nature, that this less likely as not caused acceleration or permanent aggravation of her present chronic pre-existing back injury. In rendering this opinion the examiner noted that diagnostic studies completed prior to and just after release from active duty indicated that the Veteran did not have ruptured multiple level lumbar discs, and that CT scans and MIR studies did not confirm a herniated disc immediately after discharge. The examiner noted that later diagnostic studies identified multiple level disc ruptures and that the natural history of chronic low back condition was consistent with the development of multiple level degenerative disc disease. The Board finds that this opinion does not reveal that there is clear and unmistakable evidence that the Veteran's back disability did not become permanently worse in service. In fact, by indicating that it is less likely as not the examiner is affirming that it is not clear and unmistakable. As there is not clear and unmistakable evidence that the Veteran's back disability was not permanently worsened by the Veteran's active service, the Board finds that the presumption of aggravation has not been rebutted. The Veteran's post service treatment records reveal that the Veteran has a current low back disability that has been diagnosed as multi-level facet degenerative changes and disk bulging at multiple levels and degenerative disk disease of the lumbar spine, and status postoperative anterior and posterior lumbar reconstruction with residuals. Indeed, the Veteran was found on MRI examination in December 2006, the same month as her separation from service, to have mild degenerative changes of the lower lumbar spine with some lateral disc bulging at the L4-5 level on MRI. In addition, the Veteran has had consistent treatment for her spine disability since separation from service. Lastly, although the report of the EPSBD indicates that the Veteran had significant limitations of activity prior to military service due to her chronic back and hip disabilities, the Board finds credible and probative the lay statements of record that indicate that the Veteran was very active prior to service and that the Veteran returned from service with significant limitations due to her back. As the evidence does not clearly and unmistakably show that the Veteran's lumbar spine disability both existed prior to service and was not aggravated by service, the presumption of soundness has not been rebutted. As the service treatment records reveal treatment for a back disability leading ultimately to discharge and as the Veteran was diagnosed very shortly after separation from service with degenerative disk disease of the lumbar spine and, after surgery, status postoperative anterior and posterior lumbar reconstruction with residuals, the criteria for service connection have been met. (CONTINUED ON NEXT PAGE) ORDER Service connection for lumbar degenerative disc disease is granted ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs