Citation Nr: 1325306 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 09-47 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1971 to March 1975. Thereafter, it appears that he served in the United Stated Navy Reserves, presumably with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) until March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In his February 2009 notice of disagreement, the Veteran requested a Decision Review Officer hearing. This hearing was scheduled for November 2009. However, it was not held because the Veteran's representative requested that it be cancelled in an October 2009 statement. A Central Office hearing regarding this matter instead was held in August 2010 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This matter was previously before the Board in March 2011 at which time it was remanded for further development and for due process reasons. Contemporaneous with the March 2011 hearing and most recently in July 2013, additional evidence was received. The Veteran submitted a statement waiving his right to have the RO review it. Accordingly, the Board has jurisdiction to consider this evidence in the first instance. See 38 C.F.R. § 20.1304(c). The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the evidence of record indicates that his lumbar degenerative disc disease is related to his active military service. CONCLUSION OF LAW The criteria for service connection for a low back disability, diagnosed as lumbar degenerative disc disease, have been met. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims 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). In view of the favorable disposition below, the Board finds that any possible errors on the part of VA in fulfilling its duties under the VCAA with respect to the Veteran's claim are rendered moot. II. Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence of record shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). 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. Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, application of 38 C.F.R. § 3.303(b) is only triggered if the disability in question is one that is listed as a chronic disability under 38 C.F.R. §§ 3.307, 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may 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) (2012). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Id. Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumptive service connection for certain chronic diseases) for the periods of ACDUTRA or INACDUTRA is not appropriate. ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted into the record. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006). Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection. Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). As in initial matter, in the March 2011 remand the Board requested the Veteran's service personnel records in an effort to learn the precise dates of ACDUTRA and INACDUTRA duty status for his presumed service in the Reserves from March 1975 to March 1977. However, the service personnel records that were obtained only confirmed his active service from June 1971 to March 1975. The Veteran's deck logs were also requested, but in December 2011 the National Archives and Records Administration (NARA) indicated that the records were unavailable. With regard to the merits of the claim, within the March 2011 Board remand, the Board examined the Veteran's STRs, pertinent treatment records, and August 2010 testimony before the Board. As such, all evidence discussed in the March 2011 Board remand is incorporated herein. Pursuant to the Board's March 2011 remand, the Veteran was afforded a VA examination in August 2011 at which time the examiner diagnosed degenerative disk disease at L4-L5. Because a current low back disability has been established, the Board will next consider whether the evidentiary record supports in-service incurrence. During the August 2011 VA examination, the examiner observed that the Veteran sustained some strains to his back with no specific trauma over 40 years ago during service during. After examining the Veteran, the examiner diagnosed degenerative disk disease, L4-L5, which the examiner opined was not related to the Veteran's service. Rather, the Veteran's low back disability was due to a natural age progression. The Veteran underwent a private evaluation in May 2012 at which time Dr. T.S.H. observed that the Veteran presented with reports of numerous incidents that occurred during service which caused him to injure his back. Specifically, he hauled heavy equipment up and down stairs and tripped over chains while repairing electronic systems. The Veteran reported that he was seen at "sick bay" on multiple occasions, but these records are not available. The physician indicated that he reviewed a July 1976 report which documented bilateral positive straight leg raises, "a finding more concerning than one would expect to see with a simple soft tissue injury." He also observed that the exit questionnaire completed in October 1975 documented a complaint of recurrent back pain. He noted that the Veteran reported that he sustained minor injuries as result of a motor vehicle accident in the latter 1970s. The physician observed that the Veteran reported that he sustained multiple back injuries while performing his job duties during service. He found it notable that the October 1975 exit questionnaire documented recurrent back pain and appeared to show that the Veteran developed lumbar symptomatology during service. He noted that a July 1976 medical record objectively documented bilateral straight leg raises, a finding more often than not seen with symptomatic disc pathology and not commonly seen with sprain/strain injuries. He opined that the medical documentation clearly identified lumbar degenerative disc disease, a condition which, more often than not, causes chronic lumbar symptomatology requiring treatment. Based on the history of injury provided by the Veteran, and obtained from a review of the medical records, as well as the objective findings noted on physical examination and diagnostic evaluations, he opined that the Veteran developed premature clinically symptomatic lumbar degenerative disc disease as a result of the injuries sustained during active service. The Veteran submitted a May 2012 statement from E.A.B. who indicated that he had known the Veteran since 1986 at which time he complained of low back problems. He also submitted a July 2013 statement from J.D. who stated that he had known the Veteran since 1968 who indicated that he hurt his back and, at some point, complained of back problems. J.D. also stated that the Veteran sought treatment for back problems in the late 1970s or early 1980s. The Board notes that there are medical opinions both favorable and unfavorable as to a link between the Veteran's low back disability and his active service. With regard to the May 2012 private opinion in support of the claim, the Board notes that Dr. T.S.H.'s finding that the October 1975 exit questionnaire documented a complaint of recurrent back pain is not entirely accurate, as a close review of notations on the questionnaire indicate a history of minor back pain, NCD (not considered disabling) as opposed to a history of recurrent back pain. Nonetheless, the competent medical evidence is in relative equipoise as to whether his low back disability is related to active service. After carefully reviewing all the evidence on file, the Board finds no adequate basis to reject the competent lay testimony and medical evidene of record that is favorable to the Veteran, based on a rational lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). The Veteran consistently and credibly contended that he sustained a back injury during his active service and that his low back symptomatology has continued to the present. Layno v. Brown, 6 Vet. App. 465 (1994). The opinion of the May 2012 private physician, the finding of the August 2011 VA examiner that the Veteran strained his back during service with persistent soreness and tenderness over the years, and the Veteran's statements as to his symptoms and experience support a finding of both chronicity and continuing disability. Consequently, the competent and credible medical evidence of record supports the Veteran's claim. While the evidence in this case is not unequivocal, it has nonetheless placed the record in relative equipoise. Accordingly, the claim for service connection is granted. Further inquiry could be undertaken with a view towards development of the Veteran's claim so as to obtain an additional medical opinion. However, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-07 (1994). As such, the Board will exercise its discretion to find that the evidence is in relative equipoise and conclude that entitlement to service connection for a low back disability is warranted. Id. [Continued on Next Page] ORDER Entitlement to service connection for a low back disability, diagnosed as lumbar degenerative disc disease, is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs