Citation Nr: 1317804	
Decision Date: 05/31/13    Archive Date: 06/06/13

DOCKET NO.  08-11 328	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for a back disability.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

M. Sorisio, Counsel


INTRODUCTION

The Veteran served on active duty from June 1981 to May 1988.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 1988 rating decision of the Indianapolis, Indiana Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran's claims file is now in the jurisdiction of the Waco, Texas RO.

A Board hearing was held before the undersigned in July 2010.  A transcript of the hearing is of record.  

In June 2012, the Board remanded the claim for further development of the evidence. 

A discussion of the procedural history of this case is necessary.  The RO initially characterized the issue on appeal as whether new and material evidence has been received to reopen a previously-denied service-connection claim for a back disability.  The RO based this characterization on the premise that a November 1988 rating decision, which denied service connection for a back disability, was unappealed and therefore became final.  

Careful review of the record, however, reveals that the November 1988 rating decision did not become final, and that a timely appeal of that decision was initiated by the Veteran.  Specifically, on a VA Form 9 received in July 1989 (within the one-year appeal period) the Veteran raised the issue of service connection for "back pain," noting that he "should get compensated" for this claimed disability.  Although arguably not the picture of clarity, this statement constitutes a valid Notice of Disagreement with the November 1988 rating decision's denial of service connection for a back disability.  See Robinson v. Shinseki, 557 F.3d 1355, 1362 (Fed. Cir. 2009) (noting that the Board has a duty to liberally construe issues raised by a Veteran on direct appeal).  Moreover, in an October 1990 Board decision on a separate issue on appeal, the Board noted that in the July 1989 VA Form 9, the Veteran "appealed the denial of service connection for . . . back pain."  The matter was referred to the Agency of Original Jurisdiction (AOJ) for appropriate action (i.e., issuance of a Statement of the Case (SOC)).  See October 1990 Board Decision at 2.  However, it was not until after the Veteran filed a second claim for service connection for a back disability in January 2007 that an SOC was issued or an appeal perfected.  Accordingly, because the November 1988 rating decision's denial of service connection for a back disability never became final and is the rating decision that is currently on appeal, the proper issue on appeal is entitlement to service connection for a back disability rather than whether new and material evidence has been received to reopen a previously-denied service-connection claim for a back disability.  The Board has therefore characterized the issue as one for service connection on the first page of this decision.


FINDING OF FACT

The evidence is in relative equipoise as to whether the Veteran's current lumbosacral spine disability, diagnosed as acquired spinal stenosis, degenerative arthritis with radiculopathy/neuropathy, and degenerative disc disease, is causally related to his active military service.


CONCLUSION OF LAW

Service connection for a lumbosacral spine disability, diagnosed as acquired spinal stenosis, degenerative arthritis with radiculopathy/neuropathy, and degenerative disc disease, is warranted.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012).






REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. § 3.159 (2012).  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the claim for service connection for a back disability given the fully favorable nature of the Board's decision.

II.  Legal Criteria, Factual Background, and Analysis

The Veteran contends that his current back disability is causally related to heavy lifting performed during his service in the Air Force.  Board Hearing Tr. at 3.  The Veteran has also asserted that his current back disability could be causally related to a 1983 in-service injury in which he hit his head on the wing of an aircraft.  See September 1988 VA examination report. 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  A disorder may be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service or, for a chronic disease listed in 38 C.F.R. § 3.309(a), that was seen in service with continuity of symptomatology demonstrated thereafter.  38 C.F.R. § 3.303(b) (2012); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b) only apply to a chronic disease listed in § 3.309(a)).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d) (2012).

Where a Veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and arthritis, as a chronic disease, becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2012).  

In order to establish service connection for a claimed disorder, the following must be shown: (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).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2012). 

In the instant case, there is substantial medical evidence demonstrating that the Veteran has a current back disability.  June 2007 results of magnetic resonance imaging of the spine reveal a combination of acquired and congenital stenosis throughout the lumbar spine resulting in significant central stenosis at multiple levels; and multiple superimposed disc bulges, which were most pronounced at L3/L4.  An August 2007 VA treatment record notes the Veteran has degenerative arthritis of the lumbar spine with radiculopathy/neuropathy.  On October 2007 VA examination, the examiner provided a diagnosis of degenerative disc disease of the lumbosacral spine with moderate limitation in function due to pain.  Therefore, the first element of service connection is met.

Next, the evidence also reflects the Veteran experienced an in-service injury to his back and that he continued to experience pain during service.  Specifically, the Veteran's service treatment records reveal that in November 1982, the Veteran sought treatment for back pain, which was diagnosed as "overuse syndrome."  Following his initial treatment for back pain in 1982, he consistently reported having trouble with back pain during service.  See Veteran's March 1985, April 1986, and July 1987 AF Form 2768; April 1988 Report of Medical History.  In April 1986, the Veteran specifically noted that his lower back occasionally hurt when he sat for a long period of time or exerted himself; and in July 1987, he reported that his "lower back hurts sometimes."  Moreover, during treatment in July 1987, the Veteran again reported having low back pain, especially after squatting for a long period of time.  Additionally, a March 1983 service treatment record notes that the Veteran received treatment for head trauma, reporting that he had been hit in the head over the past weekend and had experienced headaches ever since.  Notably, at the time of his separation examination in April 1988, the Veteran was noted to have had low back pain in 1983 secondary to heavy labor; however, it was also noted that the Veteran had not received any subsequent treatment for such pain.  

Statements and testimony from the Veteran indicate that he initially injured his back in 1982 while working as an aircraft fuel system mechanic.  Board Hearing Tr. at 3.  Specifically, the Veteran has reported the he first began experiencing low back pain during service after lifting heavy fuel cells.  Id.  The Veteran has also reported receiving treatment for back pain during service.  Id.  On September 1988 VA examination, he stated that he first began having back aches approximately two weeks after an in-service incident at Coswell Air Force Base in 1983 during which he hit his head on the rear part of an aircraft and was almost "knocked out."  The Veteran is competent to report about observable symptoms he experienced during service and about the factual circumstances of his service.  38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.159(a)(2) (2012); see Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a claimant is competent to provide lay evidence regarding those matters which are within his personal knowledge and experience).  The Board also finds his reports to be credible as they are supported by the service treatment records discussed above.  Therefore, the Board finds the Veteran's reports of in-service injury and continuing low back pain in service to be competent and credible.  Since the evidence shows the Veteran experienced back injury and pain in service, the second element of service connection is also met.

The key inquiry in this case is whether the Veteran's current low back disabilities are related to his in-service back injury and pain.  The record contains multiple medical opinions that address this question.  When evaluating the evidence of record, the Board must analyze its credibility and probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the Veteran.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Although the Board may appropriately favor the opinion of one competent medical authority over another, see Wensch v. Principi, 15 Vet. App. 362, 367 (2001), it must consider and weigh all medical evidence, keeping in mind the command of Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), that the benefit of the doubt in resolving such issues shall be given to the Veteran.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012).

The Veteran has reported that although he did not seek treatment for back pain directly after separation from service, he continued to have such pain, which he self-treated with pain medication.  Board Hearing Tr. at 4.  As will be discussed below, he provided similar reports during his October 2007 and June 2012 VA examinations.  The Veteran is competent to testify regarding such observable symptoms and his own self-treatment of these symptoms.  38 C.F.R. § 3.159(a)(2) (2012); see Layno, 6 Vet. App. at 469-70; Washington, 19 Vet. App. at 368.  The Board also finds his statements and testimony to be credible as his reports regarding his continuing back pain since service and his self-treatment of that pain have been consistent throughout the appeal.  In short, the Board concludes that the Veteran's statements that he has experienced back pain since service are both competent and credible.

On October 2007 VA examination, the examiner noted the Veteran's report that his low back problems first began in 1983.  The Veteran reported that although he could not remember a single injury, his back had continued to bother him since that time.  The Veteran also reported that although he continued to have recurrent back pain following separation from service, he had not "done much about his back" until 2006.  After discussing the Veteran's pertinent medical history and the findings of his physical examination, the VA examiner provided the opinion that it was less likely than not that the Veteran's current back problems were a result of his initial back injury in 1983.  In providing this opinion, the examiner highlighted that, although there were subjective complaints of pain during service, none of his objective examinations were abnormal, and moreover, there were no medical records from 1988 to 2006 showing any problems with the Veteran's back.  

On June 2012 VA examination, the examiner noted the Veteran's reports that he first began having low back pain during service in approximately 1985, although he reported that he did not remember a specific injury.  The Veteran also reported performing a great deal of heavy lifting (i.e., lifting objects weighing more than 100 pounds) during service while working with aircraft fuel systems.  Moreover, the Veteran indicated that he reported having low back pain on all of his annual physical examinations during service.  Finally, the Veteran reported that he had self-treated his back pain with Tylenol during service and with Ibuprofen following separation from service.  In this regard, he reported that he did not seek treatment for his back following service until such pain significantly worsened in approximately 2006.  After discussing the Veteran's pertinent medical history and the findings of his physical examination, the VA examiner provided an opinion that the Veteran's back condition was less likely than not incurred in, caused by, or related to an event or disease during service.  In providing this opinion, the examiner found that there was no evidence of a chronic low back condition diagnosed on active duty, and that there was no evidence of subjective complaints or objective findings for fifteen years after military discharge.  Specifically, the examiner noted that, although the Veteran complained of back pain during service in November 1982, which was diagnosed as overuse syndrome, and reported having low back pain in 1985 and 1987, his spine was found to be normal at the time of his separation examination.  The examiner also acknowledged that the Veteran underwent a VA spine examination shortly after separation from service in 1988, when he was diagnosed with "periodically symptomatic low back pain;" however, he highlighted that a physical examination conducted at that time revealed normal range of motion and posture, and that X-rays of the spine were normal.  Finally, the examiner noted that there were no subjective reports of low back pain from 1988 to 2003, and no consistent reports of low back pain until 2006.  

The Board places little probative weight on the October 2007 and June 2012 VA examiners' opinions since the examiners disregarded the Veteran's competent and credible history.  Although these examiners noted the Veteran's reported history of self-treatment since service and that he did not seek medical treatment until at least 2003, their opinions relied upon the lack of evidence of a continuity of treatment since service in determining that his current back disability was less likely than not related to his service.  Therefore, since the Board finds that the Veteran's self-treatment with medications qualifies as treatment, their opinions are essentially based on an inaccurate factual premise - that the Veteran did not undergo any treatment for his back pain until at least 2003.  Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (finding that a physician's opinion based on an inaccurate factual premise has no probative value). 

In January 2013, the Board requested an advisory medical opinion from a VHA specialist in neurosurgery or orthopedic spine surgery.  In March 2013, a specialist thoroughly reviewed the Veteran's records and noted that the Veteran had been treated since service "by self and VA providers."  Based on his review of the evidence he provided an opinion that "within a reasonable degree of medical certainty [the Veteran's] spine injury started while he was in service."  

The Board places substantial probative weight on this opinion since the specialist considered the Veteran's competent and credible reports of self-treatment after service, his reports of continuing pain after service, and the evidence and lay testimony regarding his in-service injury in reaching his conclusion.  He relied on this review to explain the basis for his opinion that the Veteran's back condition began in service.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (finding that a physician's access to the claims file and the thoroughness and detail of the opinion are important factors in assessing the probative value of a medical opinion).  Thus, his opinion relies on the evidence of record and is supported by that evidence.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion).

In short, the Board places the greatest probative weight on the March 2013 VHA specialist's opinion.  Thus, the third element of a nexus between the current disability and service has also been satisfied.  Because each of the three elements required for service connection has been met, service connection for a lumbosacral spine disability, diagnosed as acquired spinal stenosis, degenerative arthritis with radiculopathy/neuropathy, and degenerative disc disease, is warranted.  The benefit sought on appeal is granted.


ORDER

Service connection for a lumbosacral spine disability, diagnosed as acquired spinal stenosis, degenerative arthritis with radiculopathy/neuropathy, and degenerative disc disease, is granted.




____________________________________________
Donnie R. Hachey
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs