Citation Nr: 1322931	
Decision Date: 07/18/13    Archive Date: 07/24/13

DOCKET NO.  10-25 988	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a low back disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Riley, Counsel 


INTRODUCTION

The Veteran served on active duty from February 1957 to February 1959.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied entitlement to service connection for degenerative joint disease of the spine.  

In June 2013, the Veteran testified before the undersigned Veterans Law Judge at the RO.  A transcript of this hearing is of record. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's facet hypertrophy and degenerative disc disease of the lumbar spine is etiologically related to active duty service. 


CONCLUSION OF LAW

Service connection for a low back disability, currently diagnosed as facet hypertrophy and degenerative disc disease of the lumbar spine, is warranted.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that service connection is warranted for a low back disability as it was incurred due to an injury during active duty.  He testified at the June 2013 hearing that he injured his back during service when he fell off a truck in November 1958 while stationed in Fort Devens, Massachusetts.  He was treated with pain killers at Cutler Army Hospital for an injury to his coccyx and was placed on light duty.  The Veteran also testified that he has experienced back pain since the November 1958 injury. 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  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.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). 

The record establishes the presence of a current disability.  The Veteran has received treatment at Bedford and Tampa VA facilities for disc problems in his lumbar spine, and an April 2013 lumbar X-ray from a private physician confirms the presence of lumbar facet hypertrophy and degenerative disc disease.  The Board also finds an in-service injury is demonstrated.  Although service records are not available due to destruction in a fire at the National Personnel Records Center (NPRC) in July 1973, the Veteran provided credible testimony of an in-service back injury that occurred in November 1958.  He also submitted statements from his ex-wife and brother confirming that he injured his back during service and was treated with medication and light duty.  The Veteran and his family members are competent to describe injuries that occurred during active duty service.  Resolving all reasonable doubt in his favor, the Board finds that the first two elements of service connection-a current disability and in-service injury-are demonstrated.  

The Board also finds that the competent evidence of record establishes a nexus between the Veteran's current lumbar spine disability and active duty service.  He submitted September 2010 and April 2013 statements from private physicians linking his low back condition to the fall from a truck during active duty service.  The Veteran has also reported a credible history of continuous back pain since the in-service injury.  These medical and lay statements constitute competent and credible evidence in support of the claim.  Thus, all three elements necessary for service connection for a lumbar spine disability are present in this case and service connection is granted.  

The Board finds that VA has substantially satisfied the duties to notify and assist.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claim.  


ORDER

Entitlement to service connection for a low back disability, currently diagnosed as facet hypertrophy and degenerative disc disease of the lumbar spine, is granted. 




____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs