Citation Nr: 1325370	
Decision Date: 08/09/13    Archive Date: 08/13/13

DOCKET NO.  06-17 905	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a back disability. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

H. Hoeft, Counsel


INTRODUCTION

The Veteran had active service from October 1984 to August 2005. 

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2005 decision by the RO which, in part, denied service connection for a low back disability.  A hearing before a member of the Board was held in February 2009.  The Board remanded the appeal for additional development in March 2009. 

In August 2009 and in June 2010, the Board denied service connection for a low back disability; the Veteran appealed both decisions to the United States Court of Appeals for Veterans Claims (Court).  The August 2009 decision was vacated and remanded to the Board for further development pursuant to an April 2010 Joint Motion for Remand.  In a November 2011 Memorandum Decision, the Court also vacated the June 2010 Board decision and remanded the appeal to the Board for further action. 

The Veteran initially testified at a Board hearing in July 2011.  In response to a June 2012 notification that the member of the Board who conducted the Travel Board hearing in July 2011 was no longer at the Board, the Veteran indicated that he wished to be rescheduled for another Travel Board hearing.  The Veteran subsequently testified before the undersigned Veterans Law Judge at a Travel Board hearing in June 2013.  A transcript of that proceeding has been associated with the claims file. 

The Board notes that additional, relevant medical evidence was added to the file without a waiver, and subsequent to the most recent supplemental statement of the case.  However, the Veteran's claim for a back disability is being granted herein; thus, the Veteran is not prejudiced by the lack of AOJ review of such evidence.  



FINDING OF FACT

Competent and credible evidence on file indicates that the evidence is at least in relative equipoise regarding the matter of whether currently manifested and diagnosed diffuse degenerative disc disease of the thoracic spine is etiologically linked to low back symptoms subjectively and objectively noted during the Veteran's period of service. 


CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for degenerative disc disease of the thoracic spine have been met. 38 U.S.C.A. §§ 1110, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

Finally, 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). 

Here, with respect to the Veteran's service connection claim for a back disability, the Board is granting this claim.  As the Board is taking an action favorable to the Veteran, there can be no possibility of prejudice to him. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747  (1992).  An extended discussion of the duties to notify and assist is thus unnecessary. 

Service Connection 

The Veteran contends that he sustained repetitive-use injuries to his back while performing various postal/mail duties (i.e., repetitive loading/unloading of heavy mail containers) and as a result of a motor vehicle accident in-service. See Hearing Testimony, generally.  His DD Form 214 confirms that he worked in a postal service capacity for over 7 of his nearly 20 years of service.  

Generally, in order to prevail on the issue of service connection, there must be evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 

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; 38 C.F.R. § 3.303(a).  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 

Service connection shall be granted to a Veteran if the Veteran served 90 days or more during a war period or after December 31, 1946 or had peacetime service on or after January 1, 1947, and conditions including arthritis, although not otherwise established as incurred in or aggravated by service, are manifested to a compensable degree within one year following the requisite service. 38 C.F.R. §§ 3.307, 3.309 (2012).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 

Indisputably, the record contains medical evidence of a currently diagnosed back disability.  In this regard, mild diffuse degenerative disc disease of the thoracic spine was diagnosed upon MRI examination in April 2008 and confirmed upon VA examination in December 2012. 

With regard to Hickson element (2), service treatment records (STRs) also indisputably reflect that the Veteran was treated for complaints of back pain due to a motor vehicle accident and heavy lifting related to his job in a mail room.  For example, in March 1990, the Veteran complained of pain in the left flank area; the assessment was left flank pain due to pulled muscle.  In April 1991, the Veteran was treated for back pain with no history of injury.  In August 1992, a facsimile form from the Asia Emergency Assistance at the American Embassy reported that the Veteran had sustained substantial soft tissue tenderness but no significant injury.  A 1996 physical therapy note indicated more complaints of back pain.  In January 1997, the Veteran was treated for cervical muscle strain and lumbar strain secondary to a motor vehicle accident.  He was subsequently treated with physical therapy from January to April 1997, for exquisite and persistent pain in the thoracic region and heavy muscle spasms throughout.  He was assessed with severe pain secondary to soft tissue injury.  A February 1997 STR noted a provisional diagnosis of thoracic spine pain following a January 1997 motor vehicle injury.  An April 1997 STR showed that the Veteran had "ligamentous injury to [his] spine which may take months to heal."  The clinician noted that he would not benefit from further physical therapy.  November 2001 and December 2001 STRs again reflected a diagnosis of cervical strain and thoracic strain status post motor vehicle accident.  In April 2004, January 2005, and February 2005 STRs, the Veteran reported back pain.  

In May 2005, while the Veteran was still on active duty, he was provided with a general VA examination as part of the Benefits Delivery at Discharge Program (note: his claim was received in March 2005).  During the examination, the Veteran reported that the onset of his back pain was in 1988 and that it was aggravated by lifting and bending.  The diagnostic impression was low back pain without radicular features due to "probable degenerative disc disease."  However, contemporaneous x-rays of the lumbar spine (not thoracic) subsequently ruled out any degenerative disc disease.  It does not appear that any specific studies pertinent to the thoracic spine were conducted at that time.  No etiology opinions were provided at that time either. 

In addition to the above in-service complaints and treatment for back pain (and in particular, thoracic spine pain and ligamentous injury), the Veteran has provided a lay history of chronic back problems (mid-back/thoracic region) and symptoms since service. See, e.g., Board Hearings, February 2009 and June 2013.  In this regard, he is competent to describe symptoms of which he has first-hand personal knowledge and his statements to this effect are considered credible. Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Board also has no reason to doubt the credibility of such statements as they have been consistently reported throughout the record, and there is no evidence of record which expressly contradicts them. 

The remaining question is whether or not currently a currently manifested back disability was incurred during or as a result of the Veteran's active military service. 

The Board notes that significantly, the Veteran's currently manifested and diagnosed back condition is degenerative disc disease of the thoracic spine, which is an arthritic condition.  Arthritis is a chronic condition listed in 38 C.F.R. § 3.309(a), and accordingly, the nexus requirement may be proven by continuity of symptoms. See Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed.Cir.2013) ("Proven continuity of [symptoms] establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease in service ...."); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009) (holding that this Court erred in "stat[ing] categorically that 'a valid medical opinion' was required to establish nexus, and that the appellant was 'not competent' to provide testimony as to nexus because she was a layperson").  

In this case, based upon the multiple in-service complaints of, and treatment for back pain from 1990 to 2005; the documented in-service motor vehicle accident with resulting thoracic injury; the post-service diagnosis of degenerative disc disease of the lumbar spine in 2008; and the Veteran's competent and credible reports of mid-back pain during and continuously since service, the Board finds that continuity of thoracic spine symptomatology has been established in this case. See  38 C.F.R. § 3.303(b); see also 38 C.F.R. § 3.309(a). 

The Board observes that the file contains three negative VA medical opinions, provided in December 2007, November 2012, and December 2012, to the effect that it was less likely than not that the Veteran's back problems were due to his military service.  However, the December 2007 VA examination opinion was deemed inadequate by the Court; the November 2012 VA examiner failed to provide any current back diagnosis, thereby ignoring the previously diagnosed thoracic spine degenerative disc disease as confirmed by an April 2008 MRI; and the December 2012 VA examiner confirmed a thoracic spine DDD diagnosis, but did not fully weigh the Veteran's competent and credible lay statements regarding continuity and chronicity of mid-back symptomatology since service.  For all of these reasons, the Board assigns little, if any, probative value to the December 2007, November 2012, and December 2012 VA opinions. 

The Board also observes that the file contains a positive private medical opinion from Dr. T.M., M.D., provided in March 2009, which is summarized as follows: "It is in my opinion that the repetitive movement required during this job description in the postal department, specifically operating in the receiving and dispatch section, ultimately requiring the bending, twisting, picking up, and loading process on thousands of occasions over multiple years is within a reasonable degrees of medical probability and likely source of his repetitive trauma ultimately culminating in the degenerative process of the thoracic spine."  

The Board recognizes the Dr. T.M.'s opinion does not appear to be based on a review of the complete claims file; however, the opinion takes into account the Veteran's in-service duties in the postal section, his complaints of mid-back pain during and since service, and his current thoracic spine diagnosis; the opinion is supported by a well-reasoned rationale.  For these reasons, the Board finds Dr. T.M.'s opinion to be probative as to the issue of nexus.  

Given the evidence outlined above, and specifically considering Dr. T.M.'s positive nexus opinion, as well as evidence of continuous mid-back/thoracic spine symptomatology shown by in-service and post-service treatment records and the Veteran's own competent statements, the Board concludes that the evidence is at the very least in equipoise as to whether currently manifested thoracic spine condition, diagnosed as degenerative disc disease, is etiologically related to the thoracic spine problems noted during the Veteran's service.  As such, the Board will resolve any remaining doubt in the Veteran's favor to find that entitlement to service connection for degenerative disc disease of the thoracic spine is warranted. Id.  Accordingly, the claim is granted. 





ORDER


Entitlement to service connection for a back disability, degenerative disc disease of the thoracic spine, is granted. 


____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs