Citation Nr: 1321049 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 10-22 498A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for ankylosing spondylitis of the lumbar spine. REPRESENTATION Appellant represented by: Ronald C. Sykstus, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran had active duty service from May 1992 to May 1996. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2008 rating decision issued by the Montgomery, Alabama RO which denied the Veteran's claim for service connection for ankylosing spondylitis of the lumbar spine. In February 2013, the Veteran testified before the undersigned at a hearing. A hearing transcript has been associated with the claims file. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the Veteran's ankylosing spondylitis of the lumbar spine manifested during service. CONCLUSION OF LAW Ankylosing spondylitis of the lumbar spine was incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duties to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In light of the favorable determination being reached, the Board finds that no further discussion of VCAA compliance is necessary as any error that was committed as to either the duties to notify or assist is harmless. Pertinent Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service 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). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2012). Background and Analysis Service treatment records reveal that in September 1993, the Veteran complained of having low back pain for 4 days. He reported that he had hurt his back 3 days ago by lifting a 100 pound oxygen cylinder and that he had exacerbated his back pain the day before by moving furniture. He denied any numbness or tingling. The Veteran was diagnosed with lumbar back pain and received physical therapy consultation, medication, and ice treatment. He was also given a limited physical profile of light duty and no heavy lifting or carrying of anything over 15 to 20 pounds. In February 1995, the Veteran was given a limited physical profile of no running, jumping, marching, or standing for over 15 minutes at a time. However, it is unclear what this duty restriction was in relation to. In a lay statement received by the VA in March 2012, the Veteran's former fellow service member indicated that between February 1994 and December 1995, she had witnessed the Veteran having low back problems at Edwards AFB. She described his problems with bending over and lying down on his back and reported that he would sleep on his stomach because it was too painful to sleep on his back. She also stated that there were days when the Veteran struggled to get out of bed due to his back pain. She reported that in order to relieve his back pain, the Veteran would take over-the-counter medication and ask his friends to pop his back for him, but that his back pain never completely went away. After service, a July 1997 CT scan of the lumbar spine shows central disc bulge or protrusion at L4-5, spina bifida occulta at S1, and question of old ununited transverse process fracture versus apophysis on the left at L1. In an August 2008 statement, a private physician reported that he had treated the Veteran for back pain in April 1997 and that he had ordered the July 1997 CT scan of the Veteran's lumbar spine. He stated that the Veteran's diagnosis had been disc disease of the lumbar spine and that he understood that a rheumatologist had since diagnosed the Veteran with chronic ankylosing spondylitis. An April 2006 MRI of the lumbar spine revealed degenerative disc disease at L3 4, L4-5, and perhaps T12-L1; central disc protrusion with mass effect upon the thecal sac at L3-4; less severe central disc bulge at L4-5; and early facet joint arthropathy in the lower lumbar spine. However, there was no stigmata of ankylosing spondylitis found. VA and private medical records dated from June 2006 to May 2012 show that the Veteran received periodic Remicade infusions to treat his ankylosing spondylitis. On VA examination in May 2008, the Veteran reported that his ankylosing spondylitis had had its onset in 1993 when he lifted a 100 pound oxygen cylinder. He stated that his low back pain had been mild at first, but that it had gradually increased in severity. He indicated that he had sought medical care 4 days after the incident and was treated with medication, ice, and heat. He maintained that the back pain did not entirely resolve and that he continued to have a dull throb in his back, which he treated with over-the-counter medications. After examination and review of the claims file, the examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine and found that ankylosing spondylitis was a problem associated with this diagnosis. She opined that the ankylosing spondylitis was less likely as not caused by or a result of the Veteran's lumbar back pain that he had experienced in service. She reasoned that there had been no indication of ankylosing spondylitis on the CT scan performed soon after discharge from service, nor was there testing or radiological findings during service to corroborate the Veteran's claim of onset during active duty. She also indicated that there was no evidence of ankylosing spondylitis until 1997, "four years" after discharge from service. At a March 2012 VA examination, the examiner diagnosed the Veteran with ankylosing spondylitis and degenerative disc disease. He noted that the date of diagnosis of the ankylosing spondylitis was in 2004 and that the date of diagnosis of the degenerative disc disease was in 1993. After examination and review of the claims file, the examiner opined that the Veteran's ankylosing spondylitis and degenerative disc disease were less likely than not incurred in or caused by his period of service. With respect to the degenerative disc disease, the examiner explained that there was only a single report of back pain complaint found in 1993 in the service treatment records. He noted that the treatment had been ice, anti-inflammatories, and duty restriction. Regarding the ankylosing spondylitis, the examiner explained that there was no way to know if the Veteran had any stigma of this disorder during service because there were no records available to support the diagnosis prior to 2004. Further, the examiner noted that the 2006 MRI of the lumbar spine did not diagnose any of the findings seen with ankylosing spondylitis. The Veteran's treating private physician, R.M.P., submitted letters dated in August 2007, March 2010, and January 2013 in support of the Veteran's claim. In his August 2007 letter, the physician reported that he had first diagnosed and treated the Veteran in 2004 for ankylosing spondylitis. He explained that as was typical for the disease, the Veteran had reported that his symptoms had existed since at least the early 1990s while he was serving in the Air Force. The Veteran stated that he had been treated twice for chronic back pain during service. The physician opined that the Veteran's ankylosing spondylitis definitely had its onset during his active service, as it was a chronic disease that nearly always began during young adulthood. The private physician elaborated on the date of onset of the Veteran's ankylosing spondylitis in his March 2010 letter. He stated that the Veteran had begun to have back pain around age 18 in 1990 and that although he received treatment for his back pain at one time during service, he did not seek regular medical care for it after that point. The physician explained that this was considered to be a typical history for ankylosing spondylitis because the initial pain was often not very severe but would subsequently progress to fusion of the sacroiliac joints and spine. The physician indicated that by April 1997, it was well-documented that the Veteran had radiographic abnormalities consistent with the disease. He opined that the Veteran's ankylosing spondylitis had definitely begun before 1994. He found that it had probably begun around 1990 and was therefore present during the Veteran's active service. In his January 2013 letter, the physician clarified that he had made a misstatement in his March 2010 letter regarding the date of onset of the Veteran's ankylosing spondylitis. He found that the Veteran's back pain had started around 1993 because this was the date that the Veteran had consistently reported as the date of onset for his back pain. The Veteran had indicated that his first incident of back pain had occurred when he had lifted a heavy object and that his back problems had persisted throughout the rest of his period of service and after discharge from service. The physician stated that he had repeatedly confirmed the Veteran's diagnosis of ankylosing spondylitis. He explained that he had previously misstated the date of onset as being in 1990 because he had incorrectly remembered the Veteran's dates of military service. The record contains favorable and unfavorable medical evidence on whether the Veteran's ankylosing spondylitis manifested during service. The Board must therefore weigh the credibility and probative value of these opinions. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In the opinion of the March 2012 VA examiner, there was no way to know if the Veteran had any stigma of this disorder during service because there were no records available to support the diagnosis prior to 2004. In the opinion of the May 2008 VA examiner, she maintained that there had been no indication of ankylosing spondylitis on the CT scan performed "soon after discharge from service" but then noted that there was no evidence of ankylosing spondylitis "until 1997." In the opinion of treating physician Dr. R.M.P., by April 1997, it was well-documented that the Veteran had radiographic abnormalities consistent with the disease. The April 2006 report on a MRI of the lumbar spine noted that there was no stigmata of ankylosing spondylitis found, but the Board observes that a definitive diagnosis of ankylosing spondylitis occurred prior to 2006. The Board resolves reasonable doubt in favor of the Veteran and finds that in 1997, radiographic abnormalities consistent with ankylosing spondylitis were present. Also, although there was no testing or radiological findings during service, service treatment records clearly document an episode of back pain during service, the Veteran contends that the pain persisted throughout the rest of his period of service and after discharge from service, and Dr. R.M.P. explained that the Veteran's reported history was typical of this disease because the initial pain was often not very severe but would subsequently progress to fusion of the sacroiliac joints and spine. The Board finds Dr. R.M.P.'s January 2013 opinion clarifying a discrepancy between previous letters regarding the date of onset of the Veteran's ankylosing spondylitis credible. In so finding, Dr. R.M.P.'s opinion with supporting rationale that the Veteran's ankylosing spondylitis manifested during the Veteran's service constitutes competent and credible evidence in favor of the Veteran's claim that counters the negative opinion evidence against the claim. Accordingly, the Board resolves reasonable doubt in favor of the Veteran and finds that service connection for ankylosing spondylitis is warranted. (CONTINUED ON NEXT PAGE) ORDER Service connection for ankylosing spondylitis of the lumbar spine is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs