Citation Nr: 1323441 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-10 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Dr. C.N.B. ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran had active duty service from February 1975 to June 1977. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Philadelphia, Pennsylvania. The issue on appeal was originally before the Board in August 2010 when the claim was denied. The Veteran appealed the Board's August 2010 decision to the United States Court of Appeals for Veterans Claims (the Court). By Order dated in July 2011, the Court remanded the issue of entitlement to service connection for a low back condition back to the Board for action consistent with the terms of a Joint Motion for Remand. Also before the Board in August 2010 were the issues of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability and a claim for a total disability evaluation by reason of individual unemployability (TDIU). At that time the Board reopened the claim of entitlement service connection for a low back disability and denied entitlement to a TDIU. The Court's July 2011 decision did not affect the outcome of these determinations. The issues are no longer in appellate status. The case was again before the Board in January 2012 when it was remanded for additional development. In March 2013, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims folder. At the March 2013 video-conference hearing, the Veteran raised the issue of entitlement to a TDIU. The Board further notes that evidence was taken at the hearing regarding the issue of entitlement to a TDIU. However, this issue is not on appeal before the Board; therefore, the proper course of action is to REFER it to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran sustained a back injury in service. 2. There is competent medical evidence relating the Veteran's currently diagnosed degenerative disc disease of the lumbar spine to the injury he sustained in service. CONCLUSION OF LAW Degenerative disc disease of the lumbar spine was incurred in active military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants 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 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran seeks entitlement to service connection for a low back disability. Service treatment records reveal that on examination at separation from service in May 1977 the Veteran was noted to have had a minor back injury in May 1976 with no residual deficit. In June 1977 the Veteran was noted to be treated for injuries sustained in a motorcycle accident. The Veteran was noted to have injured his right arm, shoulders, and right leg. The Veteran reported stiffness of the neck. In August 1978 the Veteran reported that he hurt is back when he stepped off a hill in service. He indicated that since then he had intermittent back pain exacerbated by movement or lifting heavy objects. The pain radiated around the chest anteriorly and was located in the lower thoracic area. The assessment rendered was rule out herniated disc T9-10. In August 1978 the Veteran complained of pain in the lower back off and on for one year. An x-ray showed the Veteran's thoracic and lumbar spines to be normal. An x-ray of the thoracic spine in October 1978 was normal. An April 1979 the Veteran reported that he stepped into a hole in 1976 while in service resulting in mid-back pain. He reported that he could not straighten well as that time. The pain was persistent over time and increased on sitting, standing or walking for a long time. He reported paresthesias coming around his lower chest on both sides in a band. He noted no weakness or sphincter or sexual dysfunction. The past medical history was noted to be negative, surgery for carpal tunnel release left hand and a seizure without reactions, transfusion none. The Veteran underwent a myelogram that was essentially normal. A lay statement dated in June 1980 indicates that on numerous occasions the Veteran has been unable to perform simple work tasks due to his back illness. While working on his motorcycle and doing odd jobs around the house the Veteran has had to stop and continue them later because of constant back pain. In a statement from the Veteran dated in June 1980 the Veteran reported that he injured his back in service and upon presenting at dispensary was told he had only pulled a muscle and give a three day bed pass. He reported that upon discharge he had the condition and that it remained. The Veteran stated that a VA physician indicated that he may have a ruptured disc. In a hearing at the RO in November 1980 the Veteran reported that he injured his back and had back problems in service. He stated that he did not injure his back in his motorcycle accident. In February 1981 the Veteran was afforded a VA medical examination. The examiner noted that a report from the VA Hospital in April 1979 showed possible minute neurological abnormalities. The myelogram was normal. The examiner found the Veteran's story of the findings unusual. The examiner noted that the day before it rained and the day after it rained the Veteran reported having a lot of trouble with his back. He reported a tingling feeling in the mid-thoracic region all the way down his back. The inside of his thighs tingled and it was described as like a lot of pinpricks. Most of the Veteran's discomfort was noted to be in the mid-thoracic region in his back. It was noted that the Veteran's girlfriend would sit on his back or on his chest and this would relieve the difficulty. He had discomfort daily off and on. The more he worked the sharper the pain in his back. He was noted to have had an automobile accident in January 1980 and to have bruised his left kidney. Upon examination the Veteran was noted to have normal gait and station, no Romberg. He jumped when touched in the dorsal and mid-thoracic area of his back. All movements of the back were free. There was no atrophy of the muscles. Deep tendon reflexes in the legs were active and equal, plantars were flexor. Abdominal and cremasteric reflexes seemed to be active and equal. On the back, close to the dorsal midline in the whole thoracic area, the examiner reported that there is a bilateral area where he say he does not feel the pin. This extended on each side about two inches from the midline but did not extend around his body in any radiating pattern. On the inside of the upper thighs there was hyperesthesia so that the pinprick was distressing. These were noted to only be sensory changes. After examining the Veteran the examiner opined that there were no clear-cut abnormal neurological findings. He was told at the hospital that there was a faint possibility of multiple sclerosis (MS). The examiner did not see any indication he had MS, the symptoms were noted to be "too bizarre." The examiner noted that it was uncertain whether the Veteran even complained of back pain, he complained of tingling and abnormal sensations. The Veteran was diagnosed with back pain by history, normal neurological examination. In January 2005 the Veteran was noted to have a thirty-year history of chronic and progressive low back pain that had become particularly worsened over the prior several years. In February 2008 private treatment note indicated that a magnetic resonance imaging (MRI) scan revealed spondylosis and foraminal stenosis of the lumbar spine. The Veteran was assessed with degenerative disc disease and herniated lumbar disc L3/L4, L4/L5. A MRI scan of the lumbar spine, dated in February 2008, revealed no evidence of disk herniation or spinal stenosis, mild left-sided foraminal narrowing L3-4 and L4-5 with moderate right-sided foraminal narrowing L4-5, secondary to spondylosis and facet hypertrophy. No significant spinal stenosis was noted. In November 2008 the Veteran underwent surgery of the lumbar spine. The post operative diagnosis was lumbar spondylosis and degenerative disc disease. In May 2009 a private physician, Dr. C.N.B., reported that the Veteran had an injury to his spine in service, which required bed rest based upon the Veteran's history, lay statements, and the Veteran's narratives to the VA. The physician indicated that the historical medical exam dated in April 1979 corroborated the fact that the Veteran had a spine injury in 1976, while in service as it reported that the Veteran "stepped into a hole resulting in pain in the mid-back." The physician rendered the opinion that the Veteran's current low back problems are due to his experiences/trauma during military service. The rationale provided were that the Veteran entered service fit for duty, he had a spine injury when he was lifting boxes in service, it was known that such an injury precipitates or accelerates the onset of the degenerative process of the spine, the Veteran has had continuous back problems since service based upon his lay statements and on an evaluation in 1979 that documented an in service injury with recurrent pain and motor/neurological losses, he had current signs and symptoms that had worsened over the prior 15 months based upon comparison with an examination performed by another physician earlier, that his risk factors do not support another more plausible etiology for his current low back pathology or other risk factors including his mostly sedentary jobs since service, and the time lag interval between his service injury and his development of signs and symptoms was consistent with known medical principles and the natural history of this disease. The physician reviewed VA summaries from 1980 and 2008 and opined that they were in error. The rationale provided was that the Veteran's 1976 injury was long-standing rather than self-limiting. It was noted that the VA decision was based upon negative myelograms which are not as sensitive as MRI scan. A recent MRI scan was noted to reveal a bulge in the mid low thoracic area where the 1979 evaluation found problems. In addition it was reported that the 1979 evaluation showed asymmetric reflexes and vibration abnormalities, which could result from either lumbar, or thoracic NS damage. It was reported that the VA in 1980 did not note the Veteran's inability to straighten up and inability to sit or stand which were consistent with a lumbar level injury as the thoracic spine is protected by the rib cage and less susceptible to the increased stresses of sitting and straightening up. The VA decisions were noted to not account for the Veteran's recent MRI exam that showed multilevel degenerative disc disease, which was noted to be out of proportion to his age without antecedent injury. It was the opinion of the physician that the Veteran's antecedent injury occurred in 1976, which was documented by lay statements. After receiving this opinion, VA scheduled the Veteran for a VA examination of his spine which took place in September 2009. The examiner reviewed the Veteran's medical history as documented in the claims file and the private physician's opinion. She also obtained a history from the Veteran, particularly because there was a lack of medical documentation from the 1980s through 2008. The Veteran told the examiner that he served as a photographer's mate during his service and that he did not have any shipboard tours. His duties involved taking and developing photographs. He related that in the summer of 1976 he was unloading food off of a truck. He picked up a small box that was approximately 2 feet in size and weighed less than 40 pounds. While carrying the box he stepped into a two to four inch "gully," felt an electricity like sensation shooting down his legs, and fell. He reported that he was seen by a corpsman, given medications, and placed on bed rest for a week. He returned to work and was still stiff and sore but this resolved after approximately two weeks. After that he did not have any back problems or receive any medical treatment for his back for the rest of his time in the service. After service the Veteran worked as a masonry laborer. He had to mix cement, shovel, and carry cinder blocks. After working at this job for approximately 1 week the Veteran developed back pain. He continued working at this job for three to four weeks, but was let go after he reported his back pain to the company. Thereafter, the Veteran was seen at the VA and that x-rays were taken and a myelogram was performed. The Veteran reported that they showed a slipped or bruised disc or herniated disc. However, the myelogram was normal. In the late 1970s or early 1980s the Veteran stopped treatment with VA and after one year sought private chiropractic care. During this time, with the exception of a 1 to 2 year period during which he worked at a sedentary job, the Veteran worked in the construction and home improvement industries; his work included framing, roofing, plumbing, electrical and sheetrock installation. His back pain progressed during this time. He saw a pain management specialist and was prescribed medications. He continued to have pain from the mid back down to his thighs, along the inner legs, and out to his toes. He had some weakness when the pain, numbness, and tingling increased. He had back pain that was severe enough to require bed rest approximately twice per year but he did not see a physician due to not having health insurance. In approximately 2003 the Veteran's symptoms got worse. He was unable to walk and felt an electric shock like sensation in his legs. He intermittently used a back support and a transcutaneous electrical neural stimulation (TENS) unit that he received from a family member. This did not provide lasting relief. In 2004, a friend referred him to Dr. S. who ordered an MRI. The Veteran did not believe he had any MRIs prior thereto. The Veteran reported that the MRI showed degenerative discs. He saw a few different physicians during this time and received treatments including epidural steroid injections and a caudal injection. During this period the Veteran intermittently worked doing home improvement and construction. He stopped working in 2004. The Veteran subsequently saw Dr. R., who recommended surgery with fusion, and the Veteran underwent this procedure in November 2008. After this surgery the quality of his back pain became "like a toothache" but he no longer had electrical sensations in his legs. He tried physical therapy but this made him feel worse so he discontinued the treatment. He was referred to Dr. G. for pain management. The Veteran denied having any medical records for the period from approximately 1980 to 2004. He admitted to having been in a motorcycle accident and a car accident but he denied hurting his back in either incident. He denied a family history of back problems and he denied any trauma to his back other than the fall that occurred during his service. The examiner noted that Dr. C.N.B. noted that the Veteran had mostly sedentary jobs and that he had been a computer flight pilot since separating from the military. He stated that between 1984 and 1986 he worked at an airfield where he ran a simulator and coordinated operations and freight. This sedentary position was noted to last for one to two years. Otherwise he worked in construction. The Veteran's current back symptoms were described and reported by the examiner and the Veteran underwent physical examination of the back. A September 2009 x-ray of the thoracic spine showed mild to moderate degenerative changes. An x-ray of the lumbar spine that was performed on the same date showed a multi-level hardware fusion of the lower lumbar spine along with a multi-level laminectomy with presumed translucent spinal rods with no visible hardware related complications. The impression of an MRI was no evidence of disc herniation or spinal stenosis, mild left-sided foraminal narrowing L3-4 and L4-5 with moderate right-sided foraminal narrowing L4-5 secondary to spondylosis and facet hypertrophy, and no significant spinal stenosis. The examiner diagnosed lumbar degenerative disc disease, status post multi-level laminectomy and multi-level hardware fusion of the lumbar spine with residuals and degenerative disc disease of the thoracic spine. The examiner opined that the Veteran's current spinal disorders were less likely as not caused by or a result of military service. She explained that although there was no documentation of the specific event in the Veteran's service treatment records, he reported that his symptoms resolved after approximately 2 weeks and that he then did fine until he was discharged the following year. She noted that while Dr. B. stated in his report that the Veteran did mostly sedentary work after service, he in fact mostly worked in construction and just after his service he worked in masonry and had significant back pain at that time. He was also involved in a motorcycle and an automobile accident, although he denied any effects of these incidents on his back. The examiner also noted that the Veteran's 1979 myelogram was normal. The examiner noted that most cases of back pain are self limiting, and that there was no evidence in either the claims file or the history reported by the Veteran of chronicity or recurrence of back pain after the one incident until after his discharge from service. The examiner noted that epidemiologic studies showed an association between multiple environmental factors and the development of disc degeneration, including heavy physical work, lifting, truck driving, obesity, and smoking, all of which are major risk factors for back pain and disc degeneration. She noted that studies support the theory that degenerative disc disease has a complex multifactorial etiology and that most evidence points to an age-related process influenced primarily by mechanical and genetic factors. She noted that the Veteran had a history of ongoing construction work. The examiner concluded that based on her review of the claims folder, the history obtained by the Veteran, her examination of the Veteran, the results of the 2008 MRI, and the x-rays that were obtained in conjunction with the examination, she did not concur with the findings of Dr. C.N.B. and that the Veteran's back disorders are less likely than noted related to his service. In a letter dated in October 2009 the Veteran reiterated that he fell when he stepped into a small hole while carrying a box. He explained that he did not seek additional treatment with VA after 1979 because VA was unable to find an explanation of his back pain. Lay statements associated with the claims file from the Veteran's fellow service members reveal that the Veteran injured his back while unloading food for the base commissary. A lay statement associated with the claims file indicates that the Veteran did not have any back problems until he returned from service. In February 2011 the Veteran underwent an MRI scan of the lumbar spine. The impression rendered was status post bilateral rod and pedicle screw fusion from the L4 level through the S1 level with interbody fusion devices L3-L4 through L5-S1 as well as laminectomies at these levels. At the levels of surgery there was no significant central canal stenosis. In April 2011 the Veteran underwent a private medical examination. The Veteran reported that he stepped into a hole in 1976 while in service and that he developed mid back pain. This was associated with paresthesias entering the lower chest. The injury was confirmed by others in the service. He was found to have hyperreflexia and diminished sensation and there was concern for cord ischemia or Brown Sequard syndrome at T8 to T10. There was no evidence of multiple sclerosis. A myelogram was performed and was basically unrevealing. On further questioning, the Veteran reported that he definitely had discomfort as well in the lumbar region. Then, over the course of years, he developed worsening lumbar spine pain and left sacroiliac discomfort for which he was seen by a chiropractor and also had an injection. He was then seen by several other specialists and an MRI scan was performed in February 2004, showing a small-to-moderate, left L3-4 disc herniation compressing the nerve root, and broad-based disc herniations at L4-5 and L5-S1. Consequently, he underwent an extensive fusion with instrumentation from L3 through S1. Unfortunately, he had persistent and severe lower back pain, radiating to both legs, and was then seen by numerous other physicians. The Veteran reported that he had persistent pain since the 1976 episode and a follow up MRI scan in February 2011 revealed post-operative changes with hardware in place. The examiner reviewed x-rays of the lumbar spine post-operatively and indicated that they showed extensive hardware. After physical examination the examiner rendered the opinion that to a reasonable degree of medical certainty the current impairment and disability suffered by the Veteran is a direct consequence of the incident that occurred during his military service in 1976. The Veteran reported that he did not work construction but owned businesses that performed home restoration and that he supervised. At a hearing before the undersigned Veterans Law Judge in March 2013 the Veteran reported that in 1976 he injured his left leg and back while offloading when he stepped down. He acknowledged that the load that he was carrying threw off his gait a little bit and that is how he injured his back when he slipped. He reported that the pain hit dead center in his spine. He described the location as thoracic, though the lumbar and down his left leg. The Veteran reported that he worked for three weeks after separation from service as a mason tender. The Veteran reported that he had two companies that flipped houses and that he had employees. He stated that he did not do the construction work. He indicated that he was involved in a motorcycle accident after service; however, he stated that he did not injure his low back in this accident. Dr. C.N.B., a witness at the hearing, stated that as the Veteran had symptoms prior to his construction job, the job, if anything aggravated his back. Dr. C.N.B. testified that the Veteran's in service injury caused his low back pain and was the starting point of the Veteran's disability. The doctor provided discussion of medical evidence of the record to support this conclusion. The doctor noted that the VA medical examiners opinion was based upon the inference that the Veteran had construction jobs his whole life, when really he had sedentary throughout his whole life. In addition, the doctor noted that the VA medical examiner relied upon a myelogram as being negative in service although the Veteran had positive neurologic findings. The Veteran submitted a medical opinion from Dr. C.N.B. dated in March 2013. The physician indicated that he reviewed all of the Veteran's prior imaging studies and performed a video exam on the Veteran who was noted to have lumbar fusion from L3 to S1. The report also indicates that the claims file was reviewed. The physician rendered the opinion that the Veteran's service time low spine injury was aggravated due to intervening events of a motorcycle accident, an auto accident, and three weeks of mason work. It was the opinion of the physician that most people do not have as severe a spine degenerative process as the Veteran had in 2008 which caused him to need multilevel (L3 to S1) fusion with eight screws and plates thus his spine degenerative was advanced for his age and in his opinion the advancement of degeneration was due to his initial spine injury in service as supported by literature and as stated in his prior opinion. The physician reported that had he not had his service time injury his intervening aggravations would not have caused as severe a spine condition because he would have been better able to withstand these interval insults due to residual reserve function. The physician commented on the supporting medical opinions of record and on the VA medical examination dated in 2009 that did not support service connection. Dr. C.N.B.'s comments on the VA medical examination dated in 2009 include that the examiner stated that the Veteran only had two weeks of symptoms in April 1976 and that the Veteran has reported that he has had symptoms since service, that the examiner suggested that the Veteran had an entire post service career of construction work when he had only performed mason work for a short three week period, that the examiner did not address the consistently positive neurologic findings, that the examiner did not consider the aggravation that the Veteran's motorcycle accident, auto accident, and mason work may have caused to his back, that the examiner did not consider prior supportive medical opinions. After examination the physician rendered the opinion that the Veteran's radicular signs and symptoms in both legs with sciatica and neurogenic bowel and bladder and sexual dysfunction were all from his worsening lumbar spine injury. The Board finds that entitlement to service connection for degenerative disc disease of the lumbar spine is warranted. The Veteran has reported that he injured his spine in service when he stepped into a hole while unloading a truck in service. Service treatment records reveal that the Veteran had a minor back injury in May 1976 with no residual deficit. The Veteran has reported that his back problems continued after service and in January 2005 it was noted that the Veteran had a thirty-year history of chronic and progressive low back pain. As discussed above, in May 2009 a private physician rendered the opinion that the Veteran's current low back problems are due to his experiences/trauma during military service. The rationale provided was that the Veteran entered service fit for duty, he had a spine injury when he was lifting boxes in service, and that it was known that such an injury precipitates or accelerates the onset of the degenerative process of the spine. In addition, the private physician noted that the Veteran has had continuous back problems since service based upon his lay statements and on an evaluation in 1979 that documented an in service injury with recurrent pain and motor/neurological losses, he had current signs and symptoms that had worsened based upon comparison with an examination performed by another physician earlier, that his risk factors do not support another more plausible etiology for his current low back pathology or other risk factors including his mostly sedentary jobs since service, and the time lag interval between his service injury and his development of signs and symptoms was consistent with known medical principles and the natural history of this disease. The Board notes that in September 2009 a VA medical examiner rendered the opinion that the Veteran spinal disorders were not related to his service. The rationale provided was that the Veteran's symptoms resolved after approximately two weeks and that he did fine until he was discharged the following year. In addition, the examiner reported that the Veteran mostly worked in construction and that he was involved in a motorcycle accident and automobile accident. The examiner indicated that degenerative disc disease has a complex multifactorial etiology and that most evidence points to an age-related process influenced primarily by mechanical and genetic factors. However, in April 2011 a private physician rendered the opinion that the Veteran's current impairment and disability was a direct consequence of the indecent that occurred during his military service in 1976. In addition, in March 2013 a private physician rendered the opinion that the Veteran had a service time injury and that his subsequent accidents and short period of mason work aggravated the injury from service. The Board notes that the Veteran was noted to report in September 2009 that he had worked in the construction and home improvement industries; his work included framing, roofing, plumbing, electrical and sheetrock installation. The Veteran testified in March 2013 that he owned the companies that performed this work and that he had employees doing the work. The Veteran was noted to report in September 2009 that his back pain lasted two weeks in service and then resolved. However, the Board notes that the Veteran reported in 1980 that his back problem remained at separation from service and that he has dictated that he had intermittent or persistent pain since his in-service fall. In addition, Dr. C.N.B. has testified that the Veteran had neurological problems in 1978 and he continued to have neurological problems. He testified that although the Veteran had a negative myelogram this does not identify ligament injuries and that the Veteran did have positive neurological findings. He testifies that the Veteran's work in masonry aggravated the Veteran already injured back. As such, the Board finds the Veteran's reports of continued back pain since service to be credible. As the Veteran was treated for a back injury in service, is currently diagnosed with degenerative disc disease of the lumbar spine, and the evidence is at least in equipoise that the Veteran's back disability stems from his in service injury, entitlement to service connection for degenerative disc disease of the lumbar spine is granted. ORDER Service connection for degenerative disc disease of the lumbar spine is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs