Citation Nr: 1320829 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 06-27 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1973 to April 1975. This case was previously before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A July 2010 Board decision reopened the claim for service connection for a low back disability and remanded the reopened claim. This case was also remanded by the Board in September 2012 for additional development. FINDING OF FACT The Veteran's current chronic low back strain with muscle spasms is causally related to his active duty service. CONCLUSION OF LAW Chronic low back strain with muscle spasms was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). 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); 38 C.F.R. § 3.102. 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). Analysis Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran contends that he injured his back after being thrown from a tank while training. He stated that he was hospitalized in Germany. The Veteran also contends that he injured his back in service after a motor vehicle accident. The Board notes that a January 2011 RO memorandum noted the unavailability of in-service clinical records from Friedberg, Germany. Service treatment records (STRs) show complaints related to the low back. In July 1974, the Veteran reported low back pain for a day secondary to a fall. The impression was a back spasm. Two days later, he was again seen for back pain. An examination revealed no spasms or decreased range of motion. The impression was a mild strain. In August 1974, the Veteran presented twice complaining of recurrent low back pain, which had been on and off for the past two and a half months. On March 1975 separation report of medical history, the Veteran reported recurrent back pain. The examiner noted low back pain after lifting heavy objects. Immediately following separation from service, the Veteran filed a claim a low back claim in April 1975. He was afforded a VA examination in July 1975. The Veteran reported pain in both costovertebral angles. Lumbar spine x-rays taken at this time were normal. The examiner noted no deformity, spasm, or atrophy of the Veteran's low back. Here, the Board notes that treatment records for the period of 1975-1977 were determined to be unavailable for review. See December 2011 RO formal finding of unavailability. The Veteran filed another low back claim in 1979. June 1979 treatment records noted back pains continuing. June 1979 lumbosacral spine x-rays were normal. In 1983, he again contacted VA with a statement in which he reiterated complaints of back pain on active duty which was continuing. Postservice treatment records reflect continued complaints and treatment for chronic low back pain. In May 1989, the Veteran filed a social security claim. A subsequent determination noted a primary diagnosis of lumbar myofasciitis. A January 1990 nursing assessment noted low back pain since 1970. Another January 1990 record noted low back pain from a back injury in 1974. A March 1990 record noted back pain secondary to a motor vehicle accident in 1975. Imaging done at this time revealed mild bulges of desiccation of L4-5 and L5-S1. In March 1990 (and June 1990), the impression was mechanical low back pain. An April 1990 treatment record noted chronic back pain (with injury) for 15 years. A November 1990 record noted low back pain for 20 years. December 1990 lumbar x-rays revealed no evidence of any active or organic pathology from an orthopedic or neurologic viewpoint. January and March 1991 records noted constant low back pain since a motor vehicle accident 15 years ago. September 2001 lumbar spine x-rays showed no evidence of acute lumbar spine osseous disease and moderate degenerative changes at the L5-S1 level. May 2004 imaging of the lumbosacral spine revealed mild degenerative disc disease at the L5-S1 level; osteophytes and joint space narrowing are present. A December 2004 MRI of the lumbar spine showed mild degenerative disc disease at L3-4, moderate degenerative disc disease at L4-5, and moderately severe degenerative disc disease at L5-S1, with disc desiccation loss of disc height. A January 2005 electromyographic report returned abnormal, "with some scattered active neuropathic findings in the left L5 myotome, consistent with a radiculopathy of the corresponding root." An August 2005 treatment record noted an impression of lumbar disc disease. MRI imaging done at this time showed interval development of an anterior disc herniation at L5-S1 along with altered marrow signal, and bulging discs at L3-4 through L5-S1 with mild facet hypertrophy and no significant spinal stenosis. A November 2005 lumbar MRI revealed right foraminal disc bulging at L3-4 and L4-5 and moderate right facet joint hypertrophy at L3-4. In addition, imaging showed reactive endplate bone marrow changes surrounding the L5-S1 disc consistent with inflammatory change and marrow edema (likely related to disc degeneration and perhaps motion). January 2006 lumbosacral spine imaging revealed severe L5-S1 degenerative diseases. A May 2005 procedure report noted a postoperative diagnosis of degenerative disc disease and facet arthropathy. In June 2006, the Veteran reported back problems since 1974, when he was thrown off of a tank during his training the Army. June 2006 lumbar spine imaging showed degenerative disc space narrowing and desiccation present at L4-5 and L5-S1, in addition to right foraminal disc bulges at these two levels. August 2006 lumbar spine x-rays reveal moderate osteoarthritis at L5/S1 disc space with narrowing of prominent anterior osteophyte formation. In April 2007, a discharge summary noted a diagnosis of osteoarthritis of the lumbar spine. In a November 2000 social security claim, the Veteran reported lower back pain since 1974. In December 2004 and May 2005, a VA physician submitted statements indicating that the Veteran was currently receiving treatment for chronic low back pain with radiculitis. This physician noted a review of service records (dated 8/1974) showing problems with back pain secondary to a lifting injury. The physician stated that there is a causal relationship between the Veteran's current pain complaints and his initial injury in service. The physician further noted that an MRI shows evidence of multilevel degenerative disc disease and facet arthropathy, which can also be related to his prior injury. In August 2006, a VA physician submitted a statement certifying that the Veteran is currently being treated for lumbar stenosis and radiculopathy (among other conditions) and that his medical condition is not improving. The Veteran also submitted a buddy statement from a friend in August 2006. This friend stated that he has known the Veteran since the year 2000 and was told in the beginning of their friendship about a back injury the Veteran sustained in service after being thrown off a self-propelled 155 Howeritzter. The friend also attested to the Veteran's continuous back pain. In August 2010, the Veteran was afforded a VA examination. The examiner noted a report of a fall in the military and a jeep motor vehicle accident while in service which the Veteran claimed both injured his back. The examiner noted April 2010 X-rays which showed worsened degenerative disc disease at L4-L5 and L5-S1, and June 2010 X-rays, which revealed mild degenerative arthritis. The examiner opined that the Veteran's current low back disability was less likely than not related to his back strain in service. First, the examiner noted that the Veteran's allegation of a car accident in service was not documented in the STRs. Additionally, the examiner noted that the condition treated in service was nothing more than a simple strain of the musculature of the lumbosacral spine; nothing which might be associated with disc abnormalities. On November 2012 VA examination, the examiner diagnosed muscle spasms since 1974, degenerative disc disease since 2004, and degenerative disease since 1999. After a review of the Veteran's medical history and claims file, the examiner opined that the claimed condition was at least as likely as not incurred in or caused by service. He stated that there were several notes diagnosing muscle spasms of the low back in 1974 (in service), which shows chronicity. The examiner pointed out that in 1989, the Veteran was complaining of low back pain with various diagnoses given of myofasciitis to mechanical low back pain. Thus it is at least as likely as not that muscle spasms are connected to the Veteran's service. The examiner then noted that the Veteran was later seen for degenerative disease and degenerative disc disease, both of which are wear and tear mechanics of normal aging and cannot be attributed to service. The above evidence shows that the Veteran has current low back diagnoses of muscle spasms, degenerative disc disease, and degenerative disease. The question remaining is whether his current low back disability can be related to service. In this regard, there are two positive nexus opinions of record. The September 2012 VA examiner opined that the Veteran's muscle spasms are related to the muscle spasms reported and diagnosed in service. The examiner opined that the disc disease and degenerative joint disease were not due to the injury in service, but are the result of aging. This appears to be consistent with the comment by the August 2010 examiner that the inservice incident involved only a strain of the musculature of the low back. The November 2012 opinion is supported by an articulated rationale and was provided after a careful review of the Veteran's reported medical history and continuity of symptomatology, and a review of the claims file. Thus, it is considered highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). The Board acknowledges the 1975 and 2010 negative VA opinions; however, the Board finds that these opinions did not give sufficient weight to the Veteran's credibility in terms of service incurrence or ongoing complaints. In regard to continuity of symptomatology, the Board finds that the Veteran's statements regarding what he actually experienced during service in addition to symptoms he has experienced since service have been very consistent. Specifically, the Board notes that the Veteran filed a claim for a low back disability immediately after separation, lending credence to complaints of injury during service. In addition, postservice treatment records, social security records, and VA examination histories all consistently note that the Veteran has experienced back problems since approximately 1974. Additionally, the Veteran submitted a buddy statement attesting to a continuity of symptomatology that the Veteran reported to him. The Board thus finds the Veteran's statements regarding a continuity of symptomatology credible and favorable to a grant of service connection for low back strain with muscle spasms. In sum, the Board finds that the weight of the evidence is in favor of finding a direct connection between the Veteran's low back strain with muscle spasms, and his active service. Thus, the Veteran's appeal is granted to that extent. ORDER Entitlement to service connection for low back strain with muscle spasms is warranted. The appeal is granted to this extent. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs