Citation Nr: 1318176 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 12-25 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for residuals of low back injury, claimed as degenerative disease of the lumbar spine. REPRESENTATION Appellant represented by: Blinded Veterans Association ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from March 1949 to April 1953. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a March 2011 rating decision of the VA Regional Office in Denver, Colorado that denied service connection for residuals of low back injury. 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). FINDINGS OF FACT 1. The Veteran's statements of back injury in service and continuing symptoms thereafter are credible. 2. There is competent lay and clinical evidence of record that lumbar degenerative disease is reasonably attributable to inservice back injury. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, lumbar degenerative disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. In view of the Board's favorable decision and full grant of the benefit sought on appeal, there is no need to discuss VA's compliance with the VCAA. Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id.. Certain chronic diseases, to include arthritis, may be service connected if incurred or aggravated by service, or if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is defined as doubt that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Factual Background The Veteran's service treatment records do not reflect any complaints or treatment referable to the low back. On examination in April 1953 on discharge from active duty, the spine and musculoskeletal system were evaluated as normal. A formal claim of entitlement to service connection of a low back disorder was received in September 2010. Received in support of the claim was a January 1967 statement of charges from St. Benedict's Hospital in Ogden, Utah that did not detail the nature of any disability or treatment for which the charges were incurred. Written on the form, presumably by the Veteran, was a note that the charges were for back surgery. It was also annotated that St. Benedicts was currently called Ogden Regional Medical Center. A letter dated in December 1990 from G. L. Momberger, M.D., indicated that the Veteran had significant disc degeneration at L3-L4, with evidence of a previous discectomy at L5-S1. A statement was received from the Veteran in October 2010 stating that while his ship was enroute to Japan/Korea, a hurricane was encountered that left most of the crew unable to perform their duties. He related that upon leaving his watch to relieve himself, he saw a semi-conscious fellow sailor on the deck of the latrine who was in danger of harm. The appellant states that while lifting this sailor, his ship took a hard roll and he felt sudden severe lower back pain. He said that he was able to get the man out over the hatch sill of the latrine, but due to back spasms, could no longer move him. The Veteran wrote that when he was relieved of watch, he went to sleep and that when he awoke, his back was painful. He stated that he obtained some APC [aspirin, phenacetin, caffeine] tablets and went back to work. The appellant related that his back pain continued after he was discharged, and that because of such, he underwent a discectomy in 1967. He said that the operation helped, but that he continued to have problems, including absent left knee jerk in 1990. VA attempted to retrieve records from Ogden Regional Medical Center but was unsuccessful. A November 2011 statement was received from a fellow former sailor, a retired senior chief petty officer, who attested to observing the Veteran having back discomfort and spasms after a bad slip and fall while assisting another crewmember during active service. S. M. Foote, D.O., wrote in November 2011 that the Veteran had a history of a strained back while helping another comrade during a hurricane during service, and had spasms on and off during his military career. It was reported that after discharge, he was evaluated by a doctor who prescribed muscle relaxers. Dr. Foote stated that the appellant's symptoms worsened and he was sent to a neurosurgeon who performed surgery, but that symptoms began to recur after three or four years. Dr. Foote opined that with the Veteran's history and timeline of discomfort originating with injury on the ship 60 years before, and no further back injuries, it was possible that chronic back problems and arthritis could have originated from injury sustained while in the military 60 years before. Pursuant to the Board's remand, the Veteran underwent a VA examination in March 2012. The examiner noted that the claims folder was reviewed. Pertinent history relating to back injury in service, continuing symptoms thereafter and ensuing surgery, etc., were reiterated. A comprehensive physical examination was performed leading to diagnoses of lumbar disc disease and osteoarthritis of the lumbar spine. Following examination, the examiner commented that although there was a lack of documentation as to the onset of and treatment for the Veteran's lumbar spine condition as reported, his relatively young age (36) at the time of his surgery suggested that lumbar spine disease resulted from injury as opposed to age-related spinal disc degeneration. She added that the Veteran described an injury to his back during his active military service that certainly could have resulted in damage to his lumbar spine and that no evidence existed to prove or disprove his claim. The examiner opined that given the above, it was at least as likely as not that the Veteran's lumbar spine disease was related to reported low back injury during active military service. Legal Analysis The Veteran's service treatment records do not reflect that he received treatment for low back injury, nor was a spine or musculoskeletal disability noted at service discharge in 1953. In this case, however, the appellant has presented a history of back injury while assisting a fellow service member aboard ship during a hurricane and continuing symptoms thereafter that led to surgery. The lay and medical evidence shows current evidence of lumbar degenerative disease. While there is no documentation of back treatment during active duty or for many years thereafter, private and VA examiner examiners have deemed the appellant's account credible enough to establish a link between current back disease and injury in service. The Veteran is competent to assert the occurrence of in-service injury. See, e.g., Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Similarly, as a layperson, he is competent to report that he has experienced low back symptoms since injury in service. See Layno v. Brown, 6 Vet.App. 465, 470. Although there is no objective evidence to support a specific incident of back injury during active duty, the Board accepts the Veteran's statements and history as competent and credible. The claim that the Veteran suffered from back pain while on active duty is corroborated by a retired senior chief petty officer. As such, it is found that there is both competent and probative lay and clinical evidence in the record to find that current back disease is related to reported inservice injury and symptoms. The benefit of the doubt is thus resolved in favor of the Veteran by finding that lumbar degenerative disease was incurred in service. 38 C.F.R. § 3.102. ORDER Entitlement to service connection for lumbar degenerative disease is granted ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs