Citation Nr: 1319046 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-28 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a low back disability, to include low back pain, as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from February 2003 to May 2004. He was a member of the Army National Guard from May 1980 to September 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before a VA Decision Review Officer (DRO) in January 2013; a transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran served on active duty in the Southwest Asia theater of operations during the Persian Gulf War and is in receipt of the Combat Action Badge. 2. The Veteran has presented credible complaints of chronic low back pain which first manifest during active service in Southwest Asia that is not attributable to a known clinical diagnosis. CONCLUSION OF LAW The criteria for service connection for chronic disability resulting from an undiagnosed illness manifested by low back pain have been met. 38 U.S.C.A. §§ 1110, 1117, 1154(b) (West 2002); 38 C.F.R. §§ 3.2, 3.303, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claim of service connection, since the entire benefit sought on appeal has been granted, 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 at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service connection is awarded for disability that is the result of a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection requires competent evidence showing: (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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran has claimed service connection for low back pain. Though not specifically claimed by the Veteran, the Board observes an analysis of the Veteran's claim under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, pertaining to undiagnosed illnesses, is warranted. 38 C.F.R. § 3.317 requires only that the record establish objective indications of a chronic disability. Objective indications of a chronic disability include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(2)(ii)(3). In addition, symptoms of joint pain are specifically listed as manifestations of an undiagnosed illness capable of service connection. 38 C.F.R. § 3.317(b). VA is authorized to pay compensation to any Persian Gulf veteran suffering from a "qualifying chronic disability." A "qualifying chronic disability" includes (a) an undiagnosed illness; (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2)(B) (West 2002). To obtain service connection for an undiagnosed illness or combination of undiagnosed illnesses, a veteran needs to show (1) that he is a Persian Gulf veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) that have become manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016 and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317(a) (2012). Manifestations of an undiagnosed illness or multisymptom illness include, but are not limited to, fatigue, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, or abnormal weight loss. 38 C.F.R. § 3.317(b). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period are considered chronic. 38 C.F.R. § 3.317(a)(ii)(4). Initially, the Board observes the Veteran qualifies as a "Persian Gulf veteran." The Veteran's DD Form 214 notes he served in Iraq and Kuwait from March 2003 to March 2004. Both countries are within the area defined as the Southwest Asia theater of operations. See 38 C.F.R. § 3.317(e)(2). Further, he served in Southwest Asia during the Persian Gulf War. See 38 C.F.R. § 3.2. Regarding claimed symptomatology, the Veteran has reported a consistent history of low back pain which began during service in Iraq. See, e.g., June 2004 VA treatment record. Results of June 2005 VA x-rays and CT testing both revealed negative findings with regards to a low back disability. An August 2006 VA treatment record notes a diagnosis of "chronic low back pain." While a February 2006 private chiropractic evaluation notes a diagnosis of lumbar facet syndrome, an October 2006 VA spine examination, which included new x-ray imaging studies, specifically concluded there is insufficient evidence to warrant an acute diagnosis. The VA examiner noted a normal spine examination with normal x-rays. The Board notes a January 2010 VA x-ray study indicates minimal degenerative endplate spurring at L4-S1. However, no diagnosis of a back disability was rendered at the time, and VA treatment records as recent as January 2013 continue to note simply a diagnosis of chronic low back pain. The Board concludes that the Veteran's competent and credible reports of chronic low back pain constitute objective indications of a chronic disability due to an undiagnosed illness. The remaining question before the Board is whether these objective indications became manifest during active military service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016. The Veteran has consistently stated that his chronic low back pain began while on active duty in Iraq. See, e.g., June 2004 VA treatment note; January 2013 DRO hearing transcript. With regards to in-service back pain, the Board observes the Veteran has been awarded the Combat Action Badge. See May 2006 Personnel Action (DA Form 4187). In the case of a Veteran who engaged in combat in active service VA shall accept satisfactory lay evidence as sufficient proof of in-service occurrence or aggravation if consistent with the circumstances, conditions or hardships of such service, notwithstanding the fact that there is no official record of such occurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Board finds the Veteran's description of in-service back pain is consistent with what a military policeman would experience in a combat situation. Therefore, the manifestation of back pain while on active duty in Southwest Asia is presumed under the provisions of 38 U.S.C.A. § 1154(b). In light of a finding that the Veteran's chronic back pain manifested during active service within the Southwest Asia theater of operations, the question of whether the Veteran's current back pain has became manifest to a degree of 10 percent or more need not be addressed. See 38 C.F.R. § 3.317(a)(3). In sum, the Veteran qualifies as a Persian Gulf veteran and has presented with chronic low back pain that is not attributable to a known clinical diagnosis. This symptomatology was first manifest during the Veteran's service in the Southwest Asia theater of operations. Therefore, service connection for symptoms of chronic low back pain is warranted as due to an undiagnosed illness pursuant to 38 C.F.R. § 3.317. ORDER Service connection for chronic disability resulting from an undiagnosed illness manifested by low back pain is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs