Citation Nr: 1326183 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 10-23 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran had active duty service from July 1970 to January 1972. Service records show that he served in Vietnam from March 1971 to March 1972 and he was awarded a Combat Infantryman's Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran is now under the jurisdiction of the Los Angeles RO. The Veteran was scheduled for a Travel Board hearing in August 2012 but failed to appear for the hearing. Accordingly, his request for a Travel Board hearing is deemed withdrawn. In an April 2013 decision, the Board reopened the claim for service connection for a low back disability and remanded the matter for additional development. The Board is satisfied that there has been substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed both the Veteran's physical claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran engaged in combat with the enemy during his service in Vietnam and sustained a back injury in service due to a fall. 2. The Veteran experienced chronic and recurrent symptoms of back pain in service and since service. 3. The back disability manifested by discogenic disease, osteoarthritis, and spondylosis of the thoracolumbar spine are related to the back injury in service. CONCLUSION OF LAW Affording the Veteran the benefit of the doubt, the criteria for the establishment of service connection for a back disability manifested by discogenic disease, osteoarthritis, and spondylosis of the thoracolumbar spine are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Duty to 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). As the condition at issue of arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a), 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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 certain chronic diseases such as arthritis if manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Analysis The Veteran contends that he injured his back in combat service in Vietnam in 1971. He contends that he injured his back while jumping from a helicopter in Vietnam; the jump was from 10 to 20 feet. The Veteran contends that he has had back pain and back problems since this injury. See the Veteran's statement dated in September 2010 and the Veteran's report of the back injury to the VA examiners upon VA examination in November 2009 and April 2013. The medical evidence establishes that the Veteran has a current lumbar spine disability. A January 2007 VA x-ray report indicates that there was multi-level osteoarthritis at L3-L4 and severe multi-level discogenic disc disease. The VA treatment record noted that the low back pain was likely related to the osteoarthritis. The VA examination report dated in November 2009 shows a diagnosis of lumbar spondylosis at L1 to L4 with degenerative disc disease at L3-L4 and facet joint arthritis at L4-L5 and L5-S1. The April 2013 VA examination report shows a diagnosis of degenerative disc disease, lumbar radiculopathy, and sacroiliac joint dysfunction. The Board finds that the Veteran is a combat veteran and is entitled to the application of 38 U.S.C.A. § 1154(b). Service records show that the Veteran served in Vietnam from March 1971 to March 1972 with the 2nd Battalion, 501st Infantry, Company A. The Veteran's military specialty occupations were infantry fire crewman and ammo bearer. Service records indicate that the Veteran was awarded the Combat Infantryman's Badge. Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service connected. Collette, 82 F.3d at 392. Rather, it aids the combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. Id. Section 1154 (b) addresses the combat veteran's ability to allege that an event occurred in service while engaging in combat. See Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). That section, however, does not address the questions of either current disability or nexus to service, both of which competent medical evidence is generally required. Id. citing Caluza v. Brown, 7 Vet. App. 498, 507 (1995). In this case, the Veteran reported that when he was in combat, he sustained a back injury when he jumped from a helicopter. The Veteran indicated that he was treated for the back injury and he had back pain and back problems since the injury. Service treatment records document treatment for chronic back pain. A January 1971 entry noted that the Veteran had a predisposition to low back pain based upon excessive lumbar lordosis and he should be evaluated for significant complaints of back pain. In March 1971, the Veteran reported complaints of pain. A March 15, 1971 service treatment record indicates that the Veteran reported that he had back pain the entire time he was in service. Physical examination revealed muscle tenderness. The impression was muscle strain. Another March 1971 service treatment record indicates that there was tenderness over the lower paravertebral muscles. A March 28, 1971 service treatment record indicates that the Veteran continued to have back pain and he was started on Davon. A May 1971 service treatment record indicates that examination of the lumbar spine was essentially negative except for possible positive straight leg raise at 60 degrees. It was noted that the Veteran had right low back pain with straight leg raise on both legs. A May 1971 orthopedic evaluation record indicates that the Veteran reported that he had back pain since coming to Vietnam and it hurt most of the time. He reported that he slipped and fell on his back just after he arrived in Vietnam. It was noted that the Veteran had no complaints of radiating pain or neurological symptoms. Examination revealed mildly excessive lumbar lordosis, no definite tenderness, no spasm, and full range of motion. Straight leg raise was negative. X-ray examination was normal. Neurologic was intact. The impression was no objective findings. An undated service treatment record indicates that the Veteran reported having pain since service and no history of trauma. X-ray examination revealed no pathology. Physical examination revealed full range of motion, some paraspinous tenderness, and negative straight leg raise. The impression was muscle strain. The Veteran was prescribed Davon and Valium. The examiner noted that there were no objective findings except for pain. In June 1971, the Veteran reported back pain from a past injury. In November 1971, the Veteran reported low back pain for two days. Physical examination noted slight lumbar scoliosis, concave to the right; otherwise normal back. An impression of postural strain was noted. The report of the Veteran's separation examination dated in January 1972 reflects a diagnosis of chronic low back pain. Examination of the spine was normal. The Veteran reported having recurrent low back pain. In the present case, the Board finds that the Veteran's lay statements and the service treatment records are sufficient to establish that the Veteran sustained a back injury in service and he had chronic and/or recurrent symptoms of back pain after the injury in service. The Veteran is competent to provide lay testimony as to the onset of his observable back symptoms and report first hand events such as an injury. See Jandreau, 492 F.3d at 1377; Barr, 21 Vet. App. at 310; see 38 C.F.R. § 3.159(a)(2). Further, the Veteran's testimony is consistent with his circumstances of service. Since the Veteran engaged in combat with the enemy in active service, his lay statements are sufficient proof of the back injury sustained in service notwithstanding the fact that there is no official record of the injury from jumping from a helicopter in service. See 38 U.S.C.A. § 1154(b); see also 38 C.F.R. § 3.304(d). The Board finds that the evidence is in equipoise on the question of whether the Veteran had chronic and/or recurrent symptoms of back pain after service and continuously since service separation. There is competent and probative lay and medical evidence which establishes that the Veteran had chronic and/or recurrent symptoms of back pain after service and continuously since service separation. The Veteran has presented lay statements that he experienced chronic and/or recurrent symptoms of back pain since the injury in service and he had continuous symptoms of back pain since service. In the May 1994 application for compensation, the Veteran reported that he had a back injury in 1971. A June 2000 VA psychiatric assessment report notes that the Veteran reported having low back pain since 1972. A January 2007 VA urgent care treatment record indicates that the Veteran complained of intermittent back discomfort since service. In the August 2007 claim to reopen, the Veteran stated that he was treated for back pain right after the injury while he was in the military. A November 2007 VA psychiatric examination report indicates that the Veteran reported that he injured his back while landing from a helicopter. An April 2008 VA treatment record indicates that the Veteran reported having back pain since 1972 when he was in Vietnam. He stated that the back pain had worsened and it was now constant. He reported that the pain was constant and dull and it radiated to his left ankle. The Veteran reported having back pain and back problems since service upon VA treatment and/or examination in December 2008, March 2009, November 2009, and April 2013. See the VA treatment records dated in December 2008, March 2009 and the VA examination reports dated in November 2009 and April 2013. The Veteran is competent to provide lay testimony as to the onset of his observable back symptoms. See Jandreau, 492 F.3d at 1377; Barr, 21 Vet. App. at 310; see 38 C.F.R. § 3.159(a)(2). The Board finds the Veteran's statements are credible evidence that he has had continuous or recurrent back pain and back problems since service in Vietnam. The Veteran's statements have been consistent since the 1990's when he first asserted that he had a back injury in service in 1971. Since 2000, the Veteran has consistently reported that he has had back pain and back problems since the back injury in Vietnam. In the absence of any contravening evidence, the Board finds these statements that the Veteran has had recurrent and continuous back pain and back problems since the back injury in service to be both competent and credible, and thus probative evidence in support of his claim. See Jandreau, 492 F.3d at 1377; Barr, 21 Vet. App. at 310; and 38 C.F.R. § 3.159(a)(2). The Board acknowledges that there is a gap of time after service separation in which there is no medical evidence of treatment for a back disability or back symptoms. The Veteran separated from service in January 1972. He has not indicated any medical treatment for a back disability until the 1980's. Private treatment records dated in March 1982 reflect that the Veteran reported having low back pain with pain radiating down his left leg. The Veteran reported similar episodes one month ago. He reported no recollection of a back injury. Physical examination revealed sacroiliac tenderness. A physician diagnosed sciatic neuritis. Another private medical record dated in March 1982 shows a diagnosis of muscle spasm. It was noted that the Veteran had low back pain that radiated to the posterior legs. Review of the record shows that after 1982, the Veteran did not undergo treatment for back pain or a back disability until 2007 when the Veteran sought treatment at VA for back pain. Nevertheless, the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In the present case, the Board does find the Veteran's statements to be credible because, as discussed above, the statements have been consistent since the 1990's. The Veteran's reports of back pain and symptoms since service have been made to health care providers in connection with medical treatment. The Board finds that the Veteran's statements made in the course of medical treatment to have great probative value because statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). The Veteran's statements that he has had recurring back pain since the injury in service are also supported by the service treatment records which show that the Veteran was treated for chronic low back pain during his last year of active service and he reported having recurrent back pain upon service separation. Notwithstanding an absence of documentation of treatment of a back disorder from service separation until 1982 and an absence of documentation of treatment of a back disorder from 1982 until 2007, the Board finds that the Veteran's lay statements are favorable competent and credible lay evidence that the Veteran has had back pain ever since the injury in service. Resolving reasonable doubt in the Veteran's favor, including on the basis of finding combat during service, the Board finds that the Veteran sustained a low back injury in service, and experienced chronic symptoms of back pain during service and continuous and recurrent symptoms of back pain since service separation. There is competent and credible medical evidence which tends to support a medical relationship between the current low back disability and the back injury in service. A March 2009 VA treatment record from a pain management clinic indicates that the physician indicated that the Veteran's reported having back pain since service after jumping from a helicopter in service; the Veteran had back pain since this injury in service and the back pain has continued since then. The physician opined that the current severe spondylosis may be traumatic arthritis related to the history of back trauma when jumping. A December 2008 VA treatment record from the PM&R clinic indicates that the Veteran had chronic low back pain since the jumping injury in service in 1971 and this appeared to be of a mechanical origin by history and examination with possible left sided radiculopathy by history. The physician noted that x-ray examination showed spondylosis but examination did not support a large facet mediated component of pain. There is also competent and credible evidence which tends to show that the current back disability is not related to injury or other event in service. The November 2009 VA examination report reflects that the VA examiner diagnosed lumbar spondylosis L1 to L4 with degenerative disk disease, L3-L4 and facet joint arthritis, L4-L5 and L5-S1. The VA examiner opined that the records did not indicate that the Veteran had a back injury in service. In an addendum opinion in November 2009, the VA examiner noted that the Veteran was seen in May 1971 for evaluation of back pain. The VA examiner noted that the Veteran reported that he slipped and fell on his back. The VA examiner noted that the examination showed no objective findings. A diagnosis of chronic low back strain was given. The VA examiner stated that the findings were reviewed and considered in the opinion previously rendered. The VA examiner concluded that, since there were no objective findings, no correlation could be made without speculation. The Veteran was afforded another VA examination in April 2013. The VA examiner reviewed the claims folder and examined the Veteran. The diagnoses were degenerative disc disease, lumbar radiculopathy, and sacroiliac joint dysfunction. The VA examiner considered the Veteran's report that he injured his back in service in approximately 1971 after jumping from a helicopter. The Veteran described the medical treatment in service for the back injury and he reported that he has had chronic low back pain since the injury in service. The Veteran described his current medical treatment for the back disability and his current symptoms. The Veteran reported having daily pain in the low mid back with radiation down to the left thigh and leg. The VA examiner concluded that it was less likely than not that the current back disability was incurred in or caused by the claimed in-service injury. The VA examiner noted that the Veteran was treated several times in service for chronic or recurrent low back pain and except for the findings of excessive lumbar lordosis; there was no back pathology on examination. The VA examiner noted that a diagnosis of chronic low back pain was made at service separation. The VA examiner further found that there was no objective evidence that the Veteran complained of, was medically evaluated for, or was treated for a chronic or active low back condition between the time of his separation in 1972 and 2000. The VA examiner noted that the Veteran subjectively reported that he sought medical treatment for his back condition in the 1970's, 1980's, and 1990's, but objective evidence to confirm this was lacking. The VA examiner concluded that given the significant lapse of twenty-eight years without objective evidence of complaints or treatment for a current low back condition, the Veteran's current low back condition was less likely than not related or due to the military service. The Board finds that that November 2009 and April 2013 VA medical opinions and examination report to be competent and the Board does not question the medical expertise of the examiners. However, the Board does point out that the factual predicate upon which the VA opinions are based upon is not entirely accurate. A review of the service treatment records indicates that there are several complaints of back pain that were not addressed by the November 2009 VA examiner. For instance, a January 1971 entry noted that the Veteran had a predisposition to low back pain based upon excessive lumbar lordosis and should be evaluated for significant complaints of back pain. In March 1971, the Veteran reported complaints of pain. In June 1971, the Veteran reported back pain from a past injury. In November 1971, the Veteran reported low back pain for two days. Physical examination noted slight lumbar scoliosis, concave to the right; otherwise normal back. An impression of postural strain was noted. The report of the Veteran's separation examination dated in January 1972 reflects a diagnosis of chronic low back pain. The VA examiner's discussion of the Veteran's in-service complaints was limited to the November 1971 orthopedic evaluation. The VA examiner also did not address the diagnosis of chronic low back pain which was noted on the separation examination. In the April 2013 VA medical opinion, the VA examiner noted that there was no objective evidence of medical treatment for a back disability from 1972 to 2000. However, there are private medical records dated in March 1982 which show treatment for back pain. Thus, the Board finds that that the evidence is at least in equipoise on the question of whether the current back disability is related to the back injury in service. Resolving reasonable doubt in the Veteran's favor, including on the basis of finding combat during service, the Board finds that the Veteran sustained a low back injury in service, and experienced chronic and recurrent symptoms of back pain during service and since service separation. The Board finds the evidence to be in relative equipoise in showing that the current low back disability is as likely as not related to the back injury in active service. In resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for a low back disability manifested by discogenic disease, osteoarthritis, and spondylosis of the thoracolumbar spine is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board further finds that in resolving all reasonable doubt in the Veteran's favor, presumptive service connection for osteoarthritis of the thoracolumbar spine is warranted under the provisions of 38 C.F.R. § 3.303(b). Osteoarthritis of the thoracolumbar spine is a "chronic disease" listed under 38 C.F.R. § 3.309(a), and the provisions of 38 C.F.R. § 3.303(b) are applicable. See Walker, supra. As discussed in detail above, there is competent and credible evidence that the Veteran experienced "chronic" symptoms of back pain in service. The evidence is in equipoise as to whether the Veteran had continuous recurrent back pain symptoms since service so as to warrant presumptive service connection for thoracolumbar spine osteoarthritis under the provisions of 38 C.F.R. § 3.303(b). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for presumptive service connection for thoracolumbar spine osteoarthritis have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for a low back disability manifested by discogenic disease, osteoarthritis, and spondylosis of the thoracolumbar spine is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a back disability manifested by manifested by discogenic disease, osteoarthritis, and spondylosis of the thoracolumbar spine is granted. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs