Citation Nr: 1324226	
Decision Date: 07/30/13    Archive Date: 08/07/13

DOCKET NO.  10-13 452	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for a low back disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Postek, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1966 to March 1969.
      
This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.

In May 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) by videoconference.  A transcript is of record.  The VLJ accepted an oral waiver of initial RO review of evidence submitted at that time.

In July 2011, the Board denied the Veteran's claim for service connection for a low back disability.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In January 2012, the Court granted a Joint Motion for Remand filed by the parties.  The Board remanded the case for further development in December 2012.  That development was completed, and the case has since been returned to the Board for appellate review. 

The Virtual VA electronic claims file reveals additional evidence of the Veteran's ongoing VA treatment for his low back.  It is unclear from the most recent March 2013 supplemental statement of the case if the agency of original jurisdiction (AOJ) reviewed this evidence.  In any event, these records do not suggest a different outcome to the case, and the Board is granting the benefit sought on appeal in full.  As such, remand for AOJ consideration of this evidence is not necessary.  38 C.F.R. § 20.1304(c).


FINDING OF FACT

A low back disability, variously diagnosed as degenerative disc disease, spondylosis, intervertebral disc disorder, and disc bulging, is related to an in-service helicopter crash.

CONCLUSION OF LAW

A low back disability, variously diagnosed as degenerative disc disease, spondylosis, intervertebral disc disorder, and disc bulging, was incurred in service.  38 U.S.C.A. §§ 1110, 1154(b) (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 3.326(a) (2012).

Given the fully favorable disposition of the claim on appeal, the Board finds that that all notification and development actions needed to fairly adjudicate the claim have been accomplished.

Nonetheless, the Board notes that during the Board hearing, the undersigned VLJ clarified the issue on appeal, explained the concept of service connection, identified a potential evidentiary deficit, and suggested the submission of additional evidence to support the Veteran's claim.  The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing.

Legal Principles and Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  The absence of any one element will result in denial of service connection.  Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006).  Service connection may be granted for any disease initially diagnosed after discharge 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).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the weight of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The Veteran contends that his current low back disability is related to service - specifically, an in-service helicopter crash.  He reports that his back problems slowly evolved over time, rather than starting immediately after the crash, and that his submitted medical evidence supports his claim.  See, e.g., September 2009 notice of disagreement; May 2011 Board Hrg. Tr. at 5-6, 8.

At the outset, the Board notes that the post-service medical evidence establishes that the Veteran has a current low back (lumbar spine) disability, variously diagnosed as degenerative disc disease, spondylosis, intervertebral disc disorder and disc bulging.  See March 2008 VA examination report; March 2008 MRI report (Dr. NT); July 2008 VA provider letter; March 2009 Dr. PL examination report; April 2009 Dr. NT examination report.  In regard to in-service injury, the Veteran reported that he was involved in a helicopter crash in December 1968 during combat in Vietnam.  The Veteran's DD Form 214 reflects that he is in receipt of multiple combat awards, to include the Combat Infantry Badge (CIB) and Purple Heart.  The Board accordingly accepts the Veteran's report of this accident as consistent with the circumstances of his combat service.  38 U.S.C.A. § 1154(b).  Therefore, the only remaining consideration is whether the Veteran's current low back disability is related to his in-service injury.  See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected.").  There are multiple medical opinions on this question.

The Veteran was afforded a VA examination in March 2008.  The assessment was degenerative disc disease with spondylosis, lumbar spine.  The examiner noted documentation of back pain dating to the mid-1980s, and the Veteran's report of a helicopter crash with no report of back pain in relation to that incident.  Based on these considerations, the examiner concluded that it was less likely than not that the Veteran's back condition was due to the helicopter crash.

In a July 2008 written statement, the Veteran's treating nurse practitioner (co-signed by a VA doctor) indicated that the Veteran's back pain was a direct result of a helicopter crash in Vietnam in which the helicopter he was a crew member in landed upside down.  She also noted that his low back pain was caused by disc bulging and degenerative spondylosis in the lumbar region for which he had been treated for years by this provider.

In a March 2009 examination report, Dr. PL indicated that the Veteran had a long-standing history of low back pain dating to the 1970s after he was discharged.  He noted the Veteran's report of the helicopter accident and that he began to have significant problems with his low back the next year, which progressed thereafter.  Dr. PL stated that "[t]emporally speaking, it would certainly seem that the patient's low back pain originated from the helicopter crash, given the fact that the patient was only 19-20 years old when he began having low back pain."  The assessment was lumbar intervertebral disc disorder, lumbar radiculopathy, and chronic pain syndrome.  In an accompanying written statement, Dr. PL reiterated that he "definitely" believed that the Veteran's back problems stemmed from the helicopter crash in service.

In a written statement dated April 2009, Dr. NT noted that in reviewing the Veteran's history, it appeared that his symptoms began shortly after a severe helicopter crash in Vietnam.  He further provided that it was not uncommon to sustain progressive degeneration of the spine following a major injury of accident, especially one as violent as a hard landing upside down in a helicopter.

In response to the Board's December 2012 remand, the Veteran was afforded a VA examination in January 2013.  The examiner noted diagnoses of lumbar strain and multilevel spondylosis of the lumbar spine based on review of a prior x-ray report.  The examiner concluded that it was at least as likely as not that the Veteran's claimed lumbar spine condition was related to service.  In so finding, the examiner noted review of the claims file documenting the in-service helicopter crash and the Veteran's reported history as reliable historian.  The examiner further noted that although there were no notations of back complaints at the time of the accident, opinions of several medical providers of record noted the Veteran's long-standing complaints of low back pain and that such pain was related to the accident.

In evaluating the individual opinions, there is one opinion weighing against the claimed link, with the remainder weighing in favor of the claim.  Each of the opinions is based on the same report of the in-service helicopter crash.  The opinion of the March 2008 VA examiner, however, did not fully contemplate the Veteran's assertions made during the course of the appeal, to include that his back problems slowly evolved over the years, rather than starting immediately after the crash.  Consequently, the probative value of this opinion is diminished.  The subsequent opinion of the January 2013 VA examiner addressed the sum of the Veteran's contentions and was supportive of the Veteran's claim.

In regard to the other positive opinions, the Board again finds that the July 2008 opinion from the VA nurse practitioner/doctor taken alone, while in favor of the claim, has little probative value because it is without rationale.  Dr. PL's opinion attributes the origins of the Veteran's low back problems to the in-service accident, specifying that while he only realized hand and hearing injuries at that time, he began having significant low back problems following service, which progressed over time.  Considering the record in light of the JMR, the Board finds that this probative opinion is based consideration of the relevant facts and an accurate characterization of the evidence of record, to include the Veteran's credible testimony of onset of symptoms, as noted in the opinion.  In addition, to the extent that the opinions of Drs. PL and NT were found to be speculative, these opinions are now buttressed by the January 2013 VA examiner determination that it was at least as likely as not that the Veteran's claimed low back condition was related to the in-service event, a determination made following examination of the Veteran and review of these records.  Parenthetically, to the extent that the AOJ noted that the January 2013 VA examiner did not base the opinion on any clinical evidence, the Board notes that there is a certain level of competency that is assumed for VA examiners in reaching their determinations.  Moreover, to the extent the AOJ determined that the examination was insufficient in any manner, the AOJ had the opportunity to send the examination report back but did not do so.  Consequently, the weight of the medical opinion evidence is in favor of a link between the current low back disabilities and the in-service helicopter crash.

Considering the record in sum, the Board finds that the lay and medical evidence in this case collectively weighs in favor of the Veteran's claim.  As such, the Board finds that service connection for a low back disability is warranted.


ORDER

Entitlement to service connection for a low back disability, variously diagnosed as degenerative disc disease, spondylosis, intervertebral disc disorder, and disc bulging, is granted.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs