Citation Nr: 1319957 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 05-01 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a chronic post-operative lumbar spine disorder to include degenerative disc disease (hereinafter, "lumbar spine disability"). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran had active service from September 1981 to April 1982 and multiple periods of active duty for training (ACDUTRA), active duty for special work, and inactive duty for training (INACDUTRA) with both the Georgia Army National Guard and the Indiana Army National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the current appellate clam. In his January 2005 substantive appeal (VA Form 9), the Veteran requested a personal hearing before a Veterans Law Judge, sitting at the RO. In April 2007, a hearing was scheduled, but the Veteran failed to report. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (2012). This case was previously before the Board in August 2007, April 2009, February 2010, June 2011, and June 2012, at which time it was remanded for further development. The Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. FINDING OF FACT The evidence of record serves to demonstrate injury resulting in aggravation of the Veteran's pre-existing lumbar spine injury beyond the natural progress during INACDUTRA. CONCLUSION OF LAW The Veteran's pre-existing lumbar spine injury was aggravated by INACDUTRA. 38 U.S.C.A. §§ 1110, 1111, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to service connection for a lumbar spine disability. The Board will first discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As discussed in more detail below, sufficient evidence is of record to grant the Veteran's claims for entitlement to service connection for a lumbar spine disability. Thus, any errors in complying with the notice or assistance requirements with respect to that matter are moot. Service connection for a lumbar spine disability The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). 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) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain chronic disorders, i.e., arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. "Active military, naval, or air service" is defined in 38 U.S.C. § 101(24) to include "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty." "Active duty for training" for members of the Army National Guard of any state is defined in 38 U.S.C. § 101(22)(C) as including full-time duty under section 316 (rifle instruction of civilians), 502 (annual training), 503 (field exercises), 504 (National Guard schools), or 505 (Army and Air Force schools and field exercises) of title 32. See also 38 C.F.R. § 3.6(c)(3) (2012); Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). In Harris v. West, 13 Vet. App. 509 (2000), the Court ruled upon the meaning of 38 U.S.C.A. § 101(22), pertaining to active duty for training. It noted that under 38 U.S.C. A. § 101(24), "active military, naval, or air service" included any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty. Presumptions of soundness, aggravation, and regarding certain conditions that are considered to be chronic, per se, only apply to periods of active duty, not ACDUTRA or INACDUTRA. See Paulson v. Brown, 7 Vet. App. 466 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). However, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, and disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). "When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service." Wagner v. Principi, 370 F.3d 1089, 1096-1097 (Fed. Cir. 2004); VAOPGPREC 3-2003 at 10-11 (July 16, 2003). The veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 at 10-11 (July 16, 2003). However, the 38 U.S.C.A. § 1111 presumption of soundness "requires that there be an examination prior to entry into the period of service on which the claim is based-here, the period of active duty for training. In the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based." Smith v. Shinseki, 24 Vet.App. 40 (2010) (citing Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (presumption of sound condition attaches where there was an induction examination); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). The Veteran served on regular active duty from September 1981 to April 1982, followed by periods of service in the National Guard from October 1984 to February 1998. With regard to the Veteran's period of regular active service from September 1981 to April 1982, the available service treatment records are silent as to any lumbar spine disability. After his period of regular active service, private treatment records from E.W., M.D., dated August 1985 to October 1985 noted the acute onset of low back pain in February 1985 due to an injury to the back. The Veteran underwent a left L2-L4 laminectomy for removal of a ruptured disc. A National Guard examination dated February 1988 noted a lumbar spine surgical scar, but no other abnormalities. A private treatment report from Dr. J.S. noted that the Veteran's low back pain returned in June 1993, although an October 1993 National Guard examination indicated essentially normal results with respect to an examination of the Veteran's back. A private treatment report from Dr. J.S. also documented that the Veteran was involved in a motor vehicle accident in September 1994 and that he underwent a left laminectomy and discectomy for a herniation at L5-S1 in August 1995. A July 1997 National Guard examination documented the Veteran's complaints of recurrent back pain. The Veteran was found to be physically unfit for service in the National Guard and was discharged in February 1998. Two additional disc operations were required in September 1997 and in April 1998 for recurrent disc herniation. Private treatment records from Dr. G.S. dated from August 2000 to February 2001 indicate that the Veteran started having problems with a back injury in February 2000 when he was performing his job as a machine operator. There was a past medical history of four previous operations. Private treatment records from Dr. C.G. dated from April to August 2000 indicate that the Veteran suffered significant aggravation of his back disability as a result of his job activities from January to February 2000 as a result of his work as a machine operator. As indicated above, the Veteran's personnel records document National Guard service for periods between 1984 and 1998, including from October 17, 1984 to May 13, 1985 and from May 14, 1985 to September 29, 1993 as well as from November 4, 1993 to February 1, 1998. He also had a period of active duty for special work from January to March 1990. The Board notes that while the evidence of record includes an October 1993 National Guard enlistment examination report noting no significant abnormalities as well as a subsequent retention examination report dated July 1997, there is no record of any examination having been performed commensurate with entry to a period of INACDUTRA. However, the July 1997 examination did coincide with entry onto a period of ACDUTRA and a back disorder was noted on the examination report. Therefore, the Board finds that the presumption of soundness does not apply with respect to periods of INACDUTRA. See Smith v. Shinseki, 24 Vet.App. 40 (2010). The Veteran is currently diagnosed with lumbar degenerative disc disease. He contends that his current lumbar spine disability was aggravated by injury resulting from the physical training and other activity performed during such duty. The Veteran has specifically noted that his duties during National Guard training involved digging and climbing trees to install antenna masts and while performing these duties in 1985 he felt a pop in his lower back. He also reported that in 1993 he was laying field wire and putting up antennas and his low back just gave out. The Board notes that the Veteran is competent to attest to experiencing an injury to his back from training during service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, although the Veteran as a lay person has not been shown to be capable of making medical conclusions, he is competent to report the circumstances of injuring his back from INACDUTRA. Moreover, the duties he describes are consistent with duties described in his service personnel records and his service personnel records reflect that he performed inactive duty for training with the Georgia Army National Guard in April 1985 and in 1993. The Board therefore has no reason to doubt that the Veteran experienced such injuries during service, and finds him credible with regard to in-service injury. The Veteran was afforded a VA examination in June 2012 as to his lumbar spine disability. The VA examiner noted the Veteran's report of back pain as a result of physical training as well as injury to his lower back in 1985 and 1993 during his National Guard service. He also reported the previous surgeries to his lower back. The examiner concluded after examination of the Veteran that his lumbar spine disability did at least as likely as not result from the lumbar spine disability being aggravated beyond the natural progress during a period of INACDUTRA. The examiner's rationale for her conclusion was based on her finding that the Veteran's back injury was aggravated by injury sustained due to physical training and other activities performed during his National Guard service with repeated digging, climbing trees, and heavy lifting which resulted in his five surgeries. She also discussed medical literature indicating that the success rate for microdiscectomy spine surgery is approximately 90 to 95 percent, although 5 to 10 percent of patients will develop a recurrent disc herniation at some point in the future. She further reported that it is a well known fact that the back is constantly absorbing the impact of weight bearing and the body's movements with bending and lifting. The Board finds the competent opinion of the July 2012 VA examination to be the most probative evidence of record with regard to whether the Veteran currently has a lumbar spine disability that was incurred in or aggravated by service. The VA examiner is competent to opine as to the nature and etiology of the Veteran's lumbar spine disability based on her medical experience and training, see 38 C.F.R. § 3.159(a). The VA examiner noted that she reviewed the Veteran's medical history and provided a thorough rationale for her conclusions. The Board also notes that a VA Appeals Management Center physician provided an opinion in February 2013 with respect to the Veteran's lumbar spine disability claim. The physician noted the Veteran's previous back surgeries as well as his National Guard examinations and the absence of treatment for a lower back disability during his period of active duty. After consideration of the Veteran's medical history, the physician concluded that it is less likely than not that the Veteran's claimed back conditions were incurred in or caused by his military service. The rationale for her conclusion was based on her finding of an absence of diagnosis, treatment, or injury of the lower back during active duty. Moreover, she opined that there was clear and unmistakable evidence that the Veteran's lower back conditions and surgeries followed injuries sustained while at work in the private (civilian) sector. She therefore indicated that it is less likely than not that the Veteran's need for subsequent surgeries following the 1985 surgery are proximately due to or aggravated beyond its natural course by his military service because the etiology and nexus were at least as likely as not related to his time in the private (civilian) sector. She specifically noted Dr. E.W.'s August 1985 private treatment record and reported that the Veteran's lower back condition was an acute onset and directly related to a work injury in February 1985. Crucially, however, the Board has found the Veteran's report of in-service injury during his training in the National Guard to be credible. Pertinently, the VA physician's rationale was based on the absence of any evidence of a lumbar spine injury during the Veteran's National Guard service. Indeed, she based her opinion on injuries to the Veteran's lower back which she reported were during civilian employment. As such, the Board finds the February 2013 VA opinion of no probative value as the VA examiner did not consider the Veteran's injuries to his back during periods of INACDUTRA. Based on the total record, the Board finds that there is sufficient competent and probative evidence to indicate that the Veteran's current lumbar spine disability was permanently aggravated beyond the natural progress during INACDUTRA. Accordingly, the Veteran has met all requirements needed to establish service connection for a lumbar spine disability. The benefit sought on appeal is therefore granted. ORDER Entitlement to service connection for a lumbar spine disability is granted. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs