Citation Nr: 1319625 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 07-28 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from June 1962 to May 1966. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision that was issued by the Regional Office (RO) in Providence, Rhode Island. The Board most recently remanded the appeal in August 2011. FINDING OF FACT The Veteran's degenerative arthritis of the lumbar spine is related to an injury that occurred during active service. CONCLUSION OF LAW The criteria for service connection for degenerative arthritis of the lumbar spine have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Given the favorable determination in this case, no further discussion of the duties to notify and assist is needed. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In this case, the disorder at issue is a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2012). Therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a disorder noted during service is not shown to be chronic, then generally a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b) (2012). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran contends that he injured his back in service and that he currently has a low back disorder as a result of that injury. Service treatment records reflect that the Veteran hurt his back painting in October 1964 and was diagnosed with a right paravertebral spasm. He was then seen twice in February 1966, once for paravertebral pain that was noted as a possible relapse of the October 1964 incident and a second time for lower back pain with no history of recent trauma. His March 1966 separation examination was silent for any low back pain or disability. In an August 2007 letter, a private chiropractor noted that the Veteran had been treated for acute back strains in September 1977, October 1984, and June 1987. The chiropractor also indicated that the Veteran had been treated for back strains from December 1998 to April 1999 following a motor vehicle accident. During the August 2008 hearing, the Veteran indicated that he had been treated by various private physicians for his low back disability, to include following a motor vehicle accident in the late 1990s. In a September 2008 letter, another private chiropractor noted the Veteran's in-service history of a low back injury in October 1964 with subsequent episodes of acute flare-ups as well as a post-service history of periodic exacerbations of low back symptoms. The chiropractor also noted that x-rays revealed advanced lumbar spondylosis and degenerative disc disease. The chiropractor then opined that the Veteran's current back disorder was a direct result of the injury he sustained in October 1964 during service. The chiropractor explained that the Veteran's initial injury, although acute in nature, began the degenerative process that resulted in the Veteran's current condition. The chiropractor noted that studies have shown that an acute injury to the lumbar discs results in degenerative changes over time, resulting in degenerative disc disease and arthritic degeneration of the lumbar joints. The Veteran was afforded a VA examination in March 2009. The VA examiner indicated that the private chiropractor did not acknowledge the Veteran's post-service motor vehicle accident or the influence that it may have had on his low back disorder. The examiner stated that the Veteran did have a history of injuring his back while in service and there was insufficient data to warrant the influence of a motor vehicle accident on his back condition. The examiner added that there was no evidence that arthritis was present in service or within a year of discharge. A February 2010 private treatment note reflects a history of low back pain for years; a diagnosis of lumbar spine degenerative disc disease, degenerative joint diagnosis, and compression fracture at L-5; and a notation that the Veteran has chronic lumbar fractures that may be due to previous injury. The Veteran underwent a VA DBQ examination in September 2011. The examiner checked the box indicating that the Veteran's low back disorder was not incurred in or caused by an in-service injury. However, in the rationale portion of the report, she concluded that it was as likely as not that the Veteran degenerative arthritis of the lumbar spine was related to his active service. She noted the Veteran's in-service history of low back injury and post-service treatment by chiropractors. She acknowledged the lack of X-ray evidence showing arthritic changes within one year of service discharge. She highlighted his documented history of treatment for low back symptoms since the 1970s. She intimated that such established that the Veteran's current low back problem (degenerative arthritis) was a chronic process that had existed since service. Given the above, the Board finds that the evidence is in relative equipoise as to whether the Veteran's low back disorder is related to an injury that occurred during active service. His service treatment records show that he injured his low back in October 1964 and was treated twice in February 1966. However, his separation examination conducted one month later was negative for back problems and the first post-service complaints of a low back disorder are documented as occurring in September 1977, over a decade after discharge. A private chiropractor has opined that the Veteran's low back disorder is related to the in-service injury. One VA examiner acknowledged that the Veteran injured his back during service but stated that the effect of a post-service motor vehicle accident on his back condition could not be determined. Another VA examiner initially indicated that the Veteran's low back disorder was not incurred in or caused by an in-service injury but later, in providing the rationale, opined that the low back disorder was caused by or a result of service. Resolving doubt in the Veteran's favor, the Board finds that service connection for degenerative arthritis of the lumbar spine is warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for degenerative arthritis of the lumbar spine is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs