Citation Nr: 1317989 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-04 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a low back disability. ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1973 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) located in Roanoke, Virginia. The Board remanded the case for further development in June 2012, and it is now ready for adjudication. FINDING OF FACT The Veteran's current low back disability, degenerative disc and joint disease, is the result of injury during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C.A. §§ 1110, 1112(a), 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The decision herein to grant service connection for a low back disability constitutes a full grant of the benefit sought on appeal. Therefore, no further action is necessary to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Generally, service connection requires competent and credible evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis (or degenerative joint disease), will be presumed to have been incurred in or aggravated by service if they manifest to a degree of 10 percent within one year after separation from service, even if there is no evidence of such disease during service. 38 U.S.C.A. § 1101, 1112(a); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Where a condition is noted during service (or within the applicable presumptive period) but is not chronic, there must be evidence of continuity of symptomatology after separation from service. 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim will be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that his current low back disability is related to injury and treatment during military service from August 1973 to August 1976 and has continued since. The Veteran's service treatment records reflect that no low back was identified on the August 1973 service entrance examination. He was treated for low back pain in March 1974, September 1975, and December 1975 related to physical training and a fall. The diagnosis in December 1975 was possible lumbosacral strain. An August 1976 examination for separation from service showed no abnormalities of the spine, and there were no noted complaints. There was no report of medical history associated with this evaluation. The Veteran filed a claim for service connection for low back pain in April 2008, stating that all treatment for the back had been with Family Health Care and at a private orthopedic clinic. He later completed release forms for these private providers, identifying treatment starting in 2004. These records have been obtained. A December 2004 record from Family Health Care notes very localized sciatica with no significant findings. A January 2007 record notes complaints of mid back and inner right thigh pain for several months, and the Veteran's report that his back had been bothering him for several months. He also reported that X-rays conducted 3-4 months earlier were unremarkable. The provider diagnosed musculoskeletal back pain. In July 2007, the Veteran reported occasional low back pain aggravated by work activities, and he was diagnosed with low back pain probably due to osteoarthritis. In December 2007, he again complained of recent problems with the low back, worse with bending or lifting, and with no radiating pain. He reported being told that X-rays of the low back showed arthritic changes, and he was diagnosed with osteoarthritis of lumbar spine with low back pain. The evidence also includes records from Duke Orthopedic Clinic dated from 2007 to 2008. In November 2007, the Veteran complained of pain in the low back radiating down the lateral calf on the right side. X-rays conducted at that time were noted to show degenerative disc disease at L4-5 and L5-S1. The diagnosis was some acute inflammation in the back probably aggravated by some abnormal activity. In February 2008, the provider noted discomfort at the thoracolumbar junction for three years. The Veteran underwent MRIs of the thoracic and lumbar spine in February 2008. The thoracic spine study was interpreted as negative, with only minimal degenerative changes. The lumbar spine study was interpreted to show mild disc bulges of the lower lumbar spine. In March 2008, the provider noted that he had been applying for disability, as he could not go back to work at due to shoulder issues. In a May 2008 statement, the Veteran's mother indicated that he had no back problems prior to military service, that he wrote to her while in service stating that he had injured his back during physical training, and that he constantly complained of chronic back pain after he returned home from service and since that time. VA treatment records dated from November 2008 through May 2012 reflect continued treatment for chronic low back pain, diagnosed as degenerative disc disease or degenerative joint disease of the lumbar spine. A December 2010 MRI of the lumbar spine conducted for worsening of chronic low back pain with history of degenerative joint disease showed spondylosis with disc bulges L3/4 through L5/S1, superimposed central extrusion L4/5 level, mild central canal stenosis L3/4, and foraminal narrowing. At several points, the Veteran reported that his low back pain had been present since service. See VA records dated in March 2009 (reported worsening low back pain for several years, reports straining back during military service); November 2010 (reported low back pain dates back to basic training in 1973); January 2011 (reported chronic low back pain since 1970s, not helped by medications, physical therapy in past was non-effective); February 2011 (complained of low back pain, reported that pain started during service in 1974 with injury during basic training, mild pain that came and went over more than 30 years, recently pain was getting worse and much more constant); November 2011 (complained of hurting his back in the military while at Fort Bragg); December 2011 (complained of chronic back pain relating to his training in service). During a March 2012 VA examination by a physician's assistant the Veteran reported having back pain "off and on since Fort Bragg in 1976" and that the pain had "worsened after age 40." He also described low back pain radiating to the left leg, but he could not recall the date of onset. The examiner opined that the Veteran's current low back disability was less likely than not (less than 50 percent probability) incurred in or caused by in-service injury or event. She reasoned that there was no record of complaint or treatment for low back pain after separation from service in 1976 until 2004. There was also no record of abnormal X-ray findings in the lumbar spine during service, and the diagnosis during service in 1975 was lumbosacral strain. The examiner stated that this was an acute process, and there were no additional supporting diagnoses for lumbosacral conditions. The examiner noted the statement by the Veteran's mother, but stated that there was "no supporting documentation for continuity of care, and no competent medical evidence or diagnosis for etiology of low back pain." She further stated that there was "no identifiable etiology for low back pain experienced during active service by history or service records." The examiner concluded that the most recent medical evidence did not "support degenerative disc disease with mild disc bulges as associated with the treatment for acute lumbar strain experienced 35 years earlier during service." The Board previously found the March 2012 VA opinion to be inadequate because it seemed to require supporting medical evidence of in-service incurrence, and did not sufficiently consider the lay statements of record as to the timing of the Veteran's symptomatology, in addition to the available medical evidence during and after service. The VA examiner provided a July 2012 addendum opinion. However, this report merely restated the evidence, findings, and conclusions that were in the March 2012 report, with no additional information or explanation whatsoever. As this was previously found inadequate, it remained insufficient. Therefore, the Board sought an opinion from an orthopedic surgeon through the Veterans Health Administration (VHA), with consideration of all pertinent lay and medical evidence. In a May 2013 report, a VHA specialist opined that it was at least as likely as not (probability of 50 percent or more) that the Veteran's current low back disability had its onset in service, or was otherwise related to service, to include the documented treatment in 1974 and 1975. The specialist provided a thorough explanation for this opinion, which was based on all lay and medical evidence. The specialist explained that the Veteran was treated for low back pain several times during service related to physical training and a fall, and that the diagnosis in December 1975 was possible lumbosacral strain. He stated that it was difficult to truly objectively judge the extent or severity of the Veteran's lumbosacral without a MRI or CT scan, which were not yet available at that time (or at the time of the August 1976 separation examination). The term possible lumbosacral strain was used as an all-inclusive label and was based on subjective complaints of the patient. The specialist noted that, while there was no record no complaint or treatment from 1976 until 2004, the Veteran certainly could have been significantly affected by his chronic back pain during that period. Once it begins, chronic low back pain of unknown significance (as when no MRI or CT was available) can be insidious and can eventually lead to other problems in the low back and spine. The specialist stated that recovery from nonspecific low back pain is generally rapid, but the Veteran was seen for multiple visits, and the prognosis for such patients is less favorable. Recurrences can occur, and the emerging picture is of a chronic problem with intermittent exacerbations, rather than an acute disease that can be cured. The specialist concluded that it was more likely than not that the Veteran's current low back disability had its onset in service, or was otherwise related to service, with consideration of the statements by the Veteran's mother concerning his lack of back problems prior to service and his complaints of back pain during service and continuously after that time, as well as the Veteran's statements on several occasions that his low back pain dated back to basic training during service. This record clearly documents back injury in service and current back disability. Two of the three elements for service connection have been established. The only remaining question is whether the current back disabilities are related to the in-service injuries. Evidence against a link consists of the normal examination at service separation, the absence of medical treatment for many years after service, and the negative opinion provided by the VA physician's assistant who conducted the VA examination in 2012. The service separation examination is of limited value since there is no associated report of medical history, and the Veteran would have been competent to report back pain at that time. The absence of medical treatment is not, of itself, dispositive. The VA orthopedic surgeon explained that significant back pain could have been present in the absence of treatment. As previously the 2012 VA examiner's opinion was inadequate and is of little probative value. The evidence in support of the claim consists of the documentation of multiple complaints of back pain with identified back strain in service; the competent reports of the Veteran and his mother that describe observable low back symptoms over the years, and the opinion of the VHA medical expert. There is also no reason to find the Veteran or his mother not credible as to the timing of his symptoms. The VHA opinion is the most probative evidence, because it is provided by a physician with specialized expertise. The opinion was well-reasoned based on medical expertise, and with consideration of both the lay and medical evidence of record. As such, the Board finds this opinion to be highly probative, and to outweigh the VA examiner's negative opinion. In summary, the most probative evidence supports the claim. The evidence of record establishes that the Veteran's current low back disability was incurred as a result of injury during active service. Therefore, service connection is warranted. See 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for a current low back disability is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs