Citation Nr: 1319208 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 09-25 023 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for numbness of the lower extremities, to include as secondary to a lumbar spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active service from June 1997 to October 1997 and from April 1999 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which in pertinent part, denied service connection for a lumbar spine disorder and numbness of the lower extremities. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran has been shown to have degenerative disc disease of the lumbar spine that is related to his military service. 2. The Veteran has been shown to have numbness of the lower extremities that is related to his military service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, degenerative disc disease of the lumbar spine was incurred in active service. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. Resolving all reasonable doubt in favor of the Veteran, numbness of the lower extremities was incurred in active service. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The notice requirements of the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the decision below, the Board has granted the Veteran's claims for service connection for a lumbar spine disorder and numbness of the lower extremities. Therefore, the benefits sought on appeal have been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended during the pendency of the appeal, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for both a lumbar spine disorder and numbness of the lower extremities. He has asserted that his lumbar spine disorder and lower extremity numbness are the result of an injury sustained performing parachute jumps during his period of service. The Veteran's service personnel records do indicate that he finished airborne school and that he was awarded the parachutist badge. His service treatment records also include documentation of March 2002 physical evaluation board proceedings, which concluded that the Veteran was unfit for service as a result of a right ankle injury sustained in airborne school. It was recommended that he be separated from service. A November 2002 medical history report does reflect the Veteran's complaint of a chronic back pain that sometimes caused immobility. It was noted that the pain had an onset in April 2001 and had increased since August 2002, "possibly from jump school." The Veteran also complained of numbness and tingling in his extremities at that time. Otherwise, his service treatment records reflect no complaints of, treatment for, or diagnosis of a lumbar spine disorder or numbness of the lower extremities. Subsequent to service, the Veteran filed a claim for and was granted service connection for diffuse spondylosis of the thoracic spine. As noted above, he has since filed a separate claim for a lumbar spine disorder and numbness of the lower extremities that that believes are the result of injury sustained in the parachute jumps during his period of service. In a November 2004 VA treatment record, the Veteran complained of low back pain with radiation and numbness into his right upper thigh down to his knee. He reported that he was diagnosed with degenerative arthritis in his low back in service. On examination, the assessment was low back pain with radiation into the right thigh. A December 2004 MRI report showed broad based disc bulge at L4-5 with mild impingement. The MRI was negative for obvious herniated nucleus pulposus or spinal stenosis. An April 2005 VA examination report reflects the Veteran's report of a back injury sustained during a parachute jump. Following an examination, he was diagnosed with degenerative joint disease of the spine, but no opinion as to etiology was provided. An October 2005 VA neurosurgery consultation record documents the Veteran's complaint of severe back pain following a jump drill. On examination, the examiner's assessment was significant arthritic changes overlying a congenital stenosis in his low spine. A December 2005 private treatment record documents the Veteran's complaint of intense back pain and right leg numbness (tingling). The Veteran reported that he was injured performing multiple jumps and once landing on his tailbone. On examination, the assessment was lumbar disc degeneration. A November 2008 VA treatment record reflects the assessment of back pain with a history of congenital lumbar stenosis without symptoms of radiculopathy. An April 2009 VA examination also documents diagnoses of subjective paresthesias of bilateral lower extremities with no objective evidence on EMG of neuropathy in lower extremities, diffuse spondylosis of thoracic spine, and degenerative disc disease of the lumbar spine. The examiner opined that the degenerative changes of the lumbar spine and bilateral radiculopathy of the lower extremities were less likely as not (less than 50/50 probability) caused by or a result of his thoracic spine disability. The examiner explained that the degenerative disc disease of the lumbar spine was due to a congenital deformity of the lumbar spine. Nevertheless, in January 2013, the Board requested that a medical expert provide an opinion as to the nature and etiology of the Veteran's claimed disorders. In March 2013, an acting chief of neurosurgery service at a VA Medical Center responded after reviewing the medical records and summarizing the pertinent facts. He stated that, considering the level of physical activities during the Veteran's period of service and his history of trauma and time of course of development, it was likely that the Veteran developed or at least aggravated his degenerative spine disease during his period of service. He also indicated that it was likely that the degenerative changes of his lumbar spine contributed to development of back pain. The expert explained that the etiology of the numbness of the lower extremities was less clear, but commented that it was possible that slowly progressive changes might occur that were caused by trauma or other factors that he sustained during service. The medical expert concluded that it was likely that the Veteran's lumbar spine disorder had an onset while he was in service and that it was likely that the Veteran's current lumbar spine disorder is the result of trauma and physical activities during his military service superimposed on his congenital lumbar spinal stenosis, as opposed to it being the result of some other factors. The medical expert also opined that it was as likely as not that current numbness in the lower extremities had an onset while the Veteran was in service and that it was as likely that the Veteran's current numbness is the result of trauma and physical activities during his military service superimposed on his congenital lumbar spinal stenosis, as opposed to it being the result of some other factors. Based on the foregoing, there is at least an approximate balance of positive and negative evidence regarding the issues at hand, and the Board finds that the evidence raises at least a reasonable doubt as to whether the Veteran's current lumbar spine disorder and numbness of the lower extremities were incurred in service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for degenerative disc disease of the lumbar spine and numbness of the lower extremities is warranted. ORDER Subject to the provisions governing the award of monetary benefits, service connection for a lumbar spine disorder is granted. Subject to the provisions governing the award of monetary benefits, service connection for numbness of the lower extremities is granted. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs