Citation Nr: 1323071 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 08-09 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for low back disability 2. Entitlement to service connection for cervical spine disability. REPRESENTATION Appellant represented by: Andrew R. Rutz, Attorney ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1971; from February 1976 to March 1986; from May 1, 1992 to May 13, 1992; and from April 11, 2004 to May 5, 2004, with additional reserve service. This appeal to the Board of Veterans' Appeals (Board) arises from a May 2006 rating decision of the Los Angeles, California Regional Office (RO) of the Department of Veterans' Affairs (VA). The issue of entitlement to service connection for cervical spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's current low back disability, degenerative disc disease of the lumbar spine with radiculopathy, is reasonably shown to be related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for low back disability are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) includes enhanced duties to notify and assist claimants for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the favorable disposition of the claim for service connection for low back disability the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's service treatment records show that he was seen by medical personnel for back problems during his first period of service. On October 7, 1969, the Veteran reported back pain and problems with his feet. On October 29, 1969, he was noted to have a slight lumbosacral spasm with pain. The Veteran also reported some numbness below the knee on the left medial side. On November 7, 1969 and again on November 22, 1969, the Veteran was seen for low back pain. In September 1971, it was noted that the Veteran had been hit in the left flank area with a pool cue and was experiencing pain in the left lower thoracic area. An X-ray showed a fracture of the 8th rib on the left. An April 8, 2004 order from Army 491st Military Police Company shows that the Veteran was ordered to active duty for a period of one year beginning on April 11, 2004. The Veteran was to report to Mesa, Arizona on April 11th. From there, he was to report to Fort Dix, New Jersey on April 14th. The order shows that the Veteran's address at that time was in Yucca Valley, California. In an April 28, 2004 letter, a private physician indicated that the Veteran was evaluated neurologically on an urgent basis. It was noted that five months previously he had fallen from bleacher stands while stationed in Arizona. Since that time, he had had neck and back pain, along with numbness in the legs with a sense of tingling or wetness about the anterior thighs bilaterally. He had also had an intermittent sense of tingling about the hands and at times this would wake him up at night. The physician was not aware of the Veteran suffering any other trauma. Physical examination showed diffuse decreased pin sense. The Veteran could lean over almost to the level where he could touch his toes and there was no spine tenderness. An MRI of the lumbar spine did demonstrate straightening of the lumbar lordosis and degenerative intervertebral disc phenomenon, along with small disc protrusions at L3-4 and L5-S1. VA medical records from March 2004 to October 2007 show ongoing treatment and evaluation of low back problems. On May 10, 2004, it was noted that he had been reactivated for active duty a week previously and had felt leg pain and numbness, and numbness of the hands. On May 24, 2004, the Veteran complained of continuing neck and right hip pain. On June 15, 2004, the Veteran received a physical medicine and rehabilitation consultation for low back pain and cervical pain, along with new onset hip pain. In June 2005, the Veteran was noted to be experiencing a marked worsening of his back pain, radiating into the posterior right thigh. There was numbness and tingling in the thigh and he felt weakness in the right leg. In July 2006, the Veteran reported that his back and legs had gone out on him and he was having trouble getting up. A June 2005 functional capacity certificate indicates that the Veteran had MRI evidence of significant degenerative lumbar spine disease with physical findings of radiculopathy on the right. In an August 2006 notice of disagreement, the Veteran indicated that his back and neck problems did originate while he was on active duty. He noted that he was a truck driver while on active duty from 1969 to 1971, including service in Vietnam. He indicated that he was subjected to a lot of bumps, rough roads and heavy lifting. He felt that this was the beginning of his back and neck conditions. He reported that during his second tour of duty, from 1976 to 1986, he served as a lineman. He noted that he did fall from a communication pole during this time but that he did not recall whether he was treated by medical staff. In a June 2009 statement, the Veteran reported that the April 28, 2004 letter from the private physician was inaccurate in that he had actually fallen from the bleachers earlier in April 2004. He noted that he was stationed in Mesa, Arizona and on active duty as of April 11, 2004 and that the fall occurred while participating in drills/training with his unit, the 491st Military Police Company. He noted that his back bothered him immediately after the fall but that he figured that he had just pulled some muscles so he merely took some Tylenol for relief and continued with his training. By April 28, 2004, he sought medical attention due to extreme pain. VA medical records from March 2008 to May 2011 show continued treatment for low back pathology. In September 2008, the Veteran complained of exacerbation of low back pain and numbness involving the left leg and foot. The diagnosis was chronic low back pain due to lumbar disc disease. An October 2008 MRI showed multilevel lumbar degenerative disc disease. At a February 2009 orthopedic consultation, the Veteran was noted to have chronic low back pain and numbness down the front of both thighs and lateral aspect of the left foot. It was also noted that he was receiving Social Security Administration (SSA) disability benefits. In a December 2010 letter, a private physician indicated that the Veteran reported that his back injury occurred when he was accidentally pushed by another soldier and fell through the crack between the bleachers onto his back. Since that time the Veteran had continued to suffer from chronic low back pain and had received multiple medications as well as epidural injections. The physician found that the Veteran's low back pain more likely than not began during his military service due to the injury he sustained in the April 2004 fall. At a June 2011 VA examination, the Veteran reported that he had had chronic low back pain since the fall off the bleachers. The examiner diagnosed the Veteran with degenerative disc disease/spinal stenosis with radiculopathy of the bilateral lower extremities. The examiner noted that the Veteran had retired from the Army reserves after 20 years of service as he was informed that he could no longer be retained due to his medical conditions, primarily his back. The examiner found that the Veteran's degenerative disc disease/spinal stenosis with radiculopathy of the bilateral lower extremities was at least as likely as not caused by the Veteran's back complaints during military service. The examiner noted that the Veteran was treated for low back disorder and back complaints early in his military service career that appeared to have resolved until he fell from the bleachers while on active duty in April 2004. Thus, the Veteran's low back condition appeared to have started while on active duty military service but did not become chronic until after the April 2004 injury. The evidence shows that the Veteran has a current low back disability, lumbar degenerative disc disease with radiculopathy. It also shows that he suffered from low back pain during his early period of active duty and reasonably shows that he sustained later injury to the low back when falling off of bleachers in April 2004 while on active duty in Arizona. Although there is no actual documentation of this event, it is reasonably shown to have occurred based on the near contemporaneous April 28, 2004 private medical report read in conjunction with the Veteran's clarification of the actual timing of the injury and the service records showing that in April 2004, the Veteran initially reported to active duty in Arizona. Additionally, the June 2011 VA examiner specifically found that the Veteran's current low back disability at least as likely as not resulted from his military service and the December 2010 private physician specifically found that the Veteran's current low back pain more likely than not began during his military duty. These opinions are supported by the lack of any evidence of record of any intercurrent low back injury occurring while the Veteran was not on active duty. Also, there is no medical evidence of record to the contrary (i.e. evidence tending to indicate that the current low back disability is not related to service). Thus, a nexus between low back injury in service and current low back disability is also shown. Accordingly, as all elements of service connection have been established, service connection for low back disability is warranted. 38 C.F.R. § 3.303, Gilbert, 1 Vet. App. 49 (1990). ORDER Service connection for low back disability, diagnosed as degenerative disc disease of the lumbar spine, with radiculopathy, is granted. REMAND The evidence indicates that the Veteran has some level of disability of the cervical spine, diagnosed as degenerative disc disease and radiculopathy. The evidence also suggests that the Veteran may have sustained some injury to the cervical spine area during the fall from the bleachers during active duty in April 2004. In this regard, the private physician, in his April 28, 2004 letter noted that the Veteran had been experiencing an intermittent sense of tingling about the hands since the injury, that would at times awaken him, and that there was mild to moderate limitation of rotation of the neck bilaterally. Additionally, although the earlier service treatment records do not appear to document any specific injury to the neck, the Veteran was shown to have experienced a dislocated left shoulder and some symptoms of radiating upper extremity pain during his second period of active duty for which he received treatment in 1984 and 1985. (Cervical spine X-rays taken in November 1985 were negative). Further, the evidence indicates that there may be a relationship between injury to the cervical spine area during active service and the Veteran's current cervical spine disability. Consequently, a VA examination is necessary prior to final adjudication of the Veteran's claim for cervical spine disability. 38 C.F.R. § 3.159(c)(4). As the evidence indicates that the Veteran is receiving Social Security Administration (SSA) disability compensation, prior to arranging for the examination, the RO/AMC should obtain a copy of the Veteran's SSA disability records. Also, the RO/AMC should obtain copies of any VA medical records of treatment or evaluation for cervical spine disability from May 2011 to the present. Accordingly, the case is REMANDED for the following action: 1. Obtain a copy of the Veteran's SSA disability records. 2. Obtain copies of any VA medical records of treatment or evaluation for cervical spine disability from May 2011 to the present. 3. Arrange for a VA examination by an appropriate medical professional to determine the likely etiology of the Veteran's current cervical spine disability. Any indicated tests should be performed. The examiner should then provide an opinion whether such disability is at least as likely as not (i.e. a 50% chance or greater) related to the Veteran's military service. The Veteran's claims file must be reviewed in conjunction with the examination, including the service treatment records for all periods of service (to include April 1984, September 1984 and November 1985 records found in the body of the claims file showing treatment for a left shoulder dislocation and some radiating pain in the upper extremity); the private physician's letter from April 28, 2004 showing symptoms of numbness of the hands and limited rotation of the neck; the Veteran's June 2009 statement, describing his fall from the bleachers and clarifying that it occurred while on active duty in Mesa, Arizona; the April 28, 2004 MRI of the cervical spine; the December 2010 private medical report, which includes additional description of the April 2004 fall; the VA treatment records and any other information deemed pertinent. Although there is no specific documentation of the actual fall from the bleachers during active duty in early April 2004, the examiner should assume that the fall took place. The examiner should clearly explain the reasoning behind the opinion provided. 4. Review the examination report to ensure that it includes all requested information and, if not, return it to the examiner for correction. 5. Readjudicate the claim. If it remains denied, an appropriate supplemental statement of the case should be issued and the Veteran and his representative should be provided the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant until he is notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KELLI KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs