Citation Nr: 1323710 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 10-42 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for low back pain (claimed as residuals of a back injury). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran had active service from July 1983 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision of the Togus, Maine, Regional Office (RO), which, in pertinent part, denied service connection for the disability on appeal. The RO in Indianapolis, Indiana, has jurisdiction of the claims file. In March 2011, the Veteran testified via videoconference before the undersigned Veterans Law Judge, seated at the Board's Central Office in Washington, D.C. A transcript of the hearing has been associated with the claims file. The VLJ agreed to hold the record open for 30 days to allow the Veteran an opportunity to submit additional evidence, and the Veteran waived consideration of such by the Agency of Original Jurisdiction (AOJ). In March 2011, the Veteran submitted additional evidence in support of his claim, however, such appears to be duplicative of evidence already associated with the claims file. FINDING OF FACT The Veteran has residuals of an in-service low back injury to include degenerative disease of the lumbar spine (arthritis). CONCLUSION OF LAW The criteria for service connection for degenerative disease of the lumbar spine (arthritis) have been met. 38 U.S.C.A. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist the Appellant In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied, including discussion of whether the March 2011 Board hearing was conducted in compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010) and 38 C.F.R. § 3.103(c)(2), is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the Veteran. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection, the evidence must generally 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Arthritis is listed as a chronic condition under 38 C.F.R. § 3.309(a). Therefore, any arthritis can be granted service connection on the basis of continued symptomatology since service under 38 C.F.R. § 3.303(b). In addition, arthritis may be presumed to have been incurred in service if it becomes manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309. 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 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (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, supra. The Veteran's service treatment records, in August 1983, indicate that he complained of back pain for three days, without injury, and was diagnosed with muscular soreness. His service treatment records, in June 1986, indicate that he fell through the roof of a kennel, striking his left buttock and landing flat on the ground. He was diagnosed with lumbar strain and presented three days later with continued pain. At the time of his June 1986 service separation examination, he presented without abnormality of the lumbar spine, however, he reported a history of recurrent back pain for three years, exacerbated by a recent fall. Private treatment records dated in February 2009 indicate that the Veteran complained of middle and lower back pain and X-ray examination of the spine revealed mild degenerative spurring of the mid T-spine and moderate degenerative spurring inferior to the T-spine, without compression fracture. On VA examination in July 2009, the Veteran reported the circumstances of his 1986 in-service fall, and complained that his course since onset has been progressively worse. He reported poor response to treatment with nonsteroidal anti-inflammatory drugs (NSAIDS), physical and occupational therapy, and transcutaneous electrical nerve stimulation (TENS) unit use. He reported that he did not seek medical treatment from the time of the injury until January 2009. X-ray examination revealed a mild compression fracture of an undetermined age, at L-1, without spondylolisthesis, as well as mild degenerative disc disease, L1-L2. The examiner also noted that prior private X-ray examination, in February 2009, revealed mild L2-L3 and moderate L3-L5 degenerative spurring. The examiner diagnosed the Veteran with low back pain and opined that such was not as likely as not related to his in-service injury. He reasoned that the Veteran claimed no long-term problems from his fall in service and denied medical treatment until 2009, and that had he experienced continual problems from the 1986 injury, he would have sought treatment. The examiner also noted that the Veteran presented for private X-ray examination in February 2009, without compression fracture and X-ray examination at the time of the VA examination revealed a compression fracture, thus, the fracture must have occurred between February 2009 and July 2009. An amended July 2009 VA X-ray examination report indicates that the February 2009 X-ray examination was re-read and the examiner indicated it did indeed reveal a mild compression fracture of L1. At the time of the Veteran's March 2011 Board hearing, he reported that he injured his back during service in 1983 and 1986, and has had problems with his back since the 1986 incident. He asserted that in 1983 he was running while wearing his rucksack and had back pain related to the rubbing of the rucksack on his spine. He also asserted that in 1986, he fell through a dog kennel roof on to a concrete floor, injuring his lower back. He reported that after the initial treatment, he was told to treat his pain with over the counter pain medication. He noted that at the time of his separation from service, soon after the fall, he reported continued pain in his back. He reported that he sought treatment in 2009, as his back pain had grown to the point where he could not sleep comfortably. The Veteran's representative questioned the Veteran as to why he did not seek treatment when he separated from service, and noted that such was the basis of the negative etiological opinion rendered by the VA examiner. The Veteran reported that he took over the counter pain medication, as he was directed, and did not have insurance when he separated from service. He asserted that he worked temporary jobs in the late 1980's and early 1990's. He noted that he spoke with a chiropractor who told him that he could provide temporary relief, with two or three visits monthly for the rest of his life, to minimize pain; and that his insurance did not cover such treatment and he could not afford it. He asserted that his back pain had grown such that it created issues with standing and sitting at work. He cited the amended VA X-ray examination report and asserted that he did not injure, or fracture his spine between February 2009 and July 2009, as the mild compression fracture was determined to have been present on both occasions of X-ray examination. Following a review of the claims file, the Board concludes that the July 2009 VA opinion is inadequate. The examiner failed to adequately address the Veteran's competent, credible and thus probative account of lumbar spine symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). In fact, the reasoning provided improperly relies largely, if not entirely, on the absence of corroborating medical evidence, neglecting to consider or address competent evidence of continuity of symptomatology. To be clear, while the Veteran reported during the VA examination that he had "no issues" until the past year, it appears that such statement refers to the impact his low back pain had on his full-time sales employment. It remains that the Veteran specifically reported progressively worse symptoms since the 1986 in-service injury. Thus, the VA opinion is incomplete and is of no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). However, the absence of a sufficient medical opinion is not fatal to the claim. Both the February 2009 and July 2009 VA X-ray findings essentially demonstrate residuals of a back injury to include a compression fracture, disc disease, and other degenerative (or arthritic) changes. While the Veteran's degenerative disc disease present on X-ray examination is not among the chronic diseases listed in 38 C.F.R. § 3.309(a), allowing the claim to be established based on continuity of symptomatology, degenerative arthritic changes, or arthritis, is among the enumerated chronic diseases listed. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran provides a competent and credible account of lumbar spine symptomatology, including in-service trauma and continuous symptoms since separation. Layno, 6 Vet. App. 465, at 470; Jandreau, 492 F.3d 1372, at 1377. His account in this regard has been generally consistent, including his sworn March 2011 Board testimony. The Veteran gave specific testimony as to the reasons he did not seek medical treatment for his low back pain until 2009. The Board can conceive of a scenario wherein the Veteran managed his low back pain with over the counter pain medication from 1986 to 2009, and sought treatment, as he has asserted, when the pain became so great that he had difficulty sleeping, walking, sitting, standing, and thus had an impact on his daily life and employment. There is no basis upon which to find the Veteran not credible. (Continued on the next page) Therefore, consistent with 38 C.F.R. § 3.303(b), the Veteran's competent, credible and thus probative account of in-and post-service lumbar spine symptomatology supports the diagnosis of degenerative disease of the lumbar spine by medical professionals, satisfying the second and third elements of service connection by demonstrating a continuity of symptomatology. See Davidson, 581 F.3d 1313, at 1316; Jandreau, 492 F.3d at 1376-77. Thus, service connection for degenerative disease of the lumbar spine (arthritis) is warranted. ORDER Service connection for degenerative disease of the lumbar spine (arthritis) is granted, subject to the laws and regulations governing monetary awards. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs