Citation Nr: 1326643 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-08 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2003 to June 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A Board hearing was scheduled to be held in August 2012. Prior to the hearing date, the Veteran cancelled the hearing and requested that his claim be decided without a hearing. FINDING OF FACT The Veteran's low back disability is reasonably shown to have had its onset during his active service. CONCLUSION OF LAW Service connection for a low back disability is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. The Veteran asserts that he has a low back disability that is related to an in-service incident in 2005. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 38 U.S.C.A. § 5107(b). The Board will examine each requirement of service connection in turn. First, the Board will determine whether the Veteran has a current disability. The post-service medical evidence of record includes treatment records from Temple VA Medical Center, dated from September 2007 to March 2011, and a VA examination conducted in August 2010. The VA treatment records note complaints of back pain, including in December 2008 and March 2010. The outpatient records note diagnoses of low back strain and mechanical low back pain. At the August 2010 VA examination, the examiner diagnosed lumbar strain. As an additional piece of support, the Board notes that since his separation from active service, the Veteran has served in the National Guard. He was given a physical profile to limit his physical activity due to a low back condition in May 2010. The Board concludes that the evidence demonstrates that the Veteran has a current diagnosis of a low back condition. The next issue the Board must resolve is whether the Veteran's current low back condition was caused or aggravated by his time in service. The VA examiner reviewed the claims file and gave an opinion that the Veteran's current low back condition was less likely as not related to the strain the Veteran claims he suffered in 2005. The examiner based her opinion on the lack of documentation in the Veteran's service treatment records of a back condition significant enough for him to seek treatment. As the examiner notes, there are no entries in the Veteran's service treatment records indicating that he sought treatment for a low back injury. However, the Veteran reported recurrent back pain at his separation examination in March 2007. At the time of his separation, he complained of a back strain with the most recent episode being in 2005. At the separation examination, the examiner noted tenderness to palpitation of sacrospinal muscles. The Veteran's entrance examination makes no mention of any back problems. The Board notes that there is no further medical evidence of an in-service incident. In making all determinations, the Board must consider the lay assertions of record. 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). 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine 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, 492 F.3d at 1376-77. The Veteran claims that he suffered an injury in 2005 while lifting equipment. In support of his contention, the Veteran provided statements from his wife and two members from his unit. The members of his unit assert that the Veteran injured his back while lifting equipment. The Board finds the two individuals competent to report that the Veteran suffered back pain after attempting to lift equipment. The only inconsistency between the two statements is that one claims the injury occurred in May 2005 and the other claims it occurred in June 2005. One of the witnesses claims that due to the operational tempo, the Veteran's supervisor suggested the Veteran stop lifting but that he not report to the clinic for treatment. The unit had recently returned from a deployment to Iraq and was quite busy. The Board finds this evidence credible and consistent with the medical evidence of record. When balancing the lack of treatment against the two statements and the separation examination, the Board finds it reasonable to conclude the Veteran suffered an in-service injury. The final issue the Board must consider is whether the Veteran's current low back condition is related to his service. At his VA examination in August 2010, the Veteran reported that after the injury he had pain for about 4 days. In the few years prior to the examination, he claims to have suffered back pain 3-5 days a month. More recently, the pain increased to 3-5 days a week. He takes etodalac to treat the problem. The Board finds that the VA treatment records demonstrate recurrent back pain since the Veteran's time in service. Further, the Board finds that the Veteran's testimony regarding continuity since service is credible. Accordingly, the Board finds that service connection is warranted for a low back disability. Reasonable doubt is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for a low back disability is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs