Citation Nr: 1326987 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 05-28 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a back condition. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from June 1985 to May 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision by the Detroit, Michigan Department of Veterans Affairs (VA) Regional Office (RO). In April 2010 this case was remanded to honor the Veteran's request for a Board hearing; that hearing was held in October 2010. This matter was before the Board in February 2011 and February 2013 when it was remanded for additional development. FINDING OF FACT The Veteran's lumbar spine degenerative disc disease had its onset in service. CONCLUSION OF LAW Lumbar spine degenerative disc disease was incurred in service. 38 U.S.C.A. §§ 11131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this decision, the Board grants service connection for lumbar spine degenerative disc disease, which constitutes a complete grant of the benefits sought on appeal. Therefore, a discussion of VA's duties to notify and assist is unnecessary regarding the claim. The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully 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) (a veteran is competent to report on that of which he or she has personal knowledge). 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). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and address the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Dalton v. Nicholson, 21 Vet. App. 23, 28 (2007). The Veteran's service treatment records reflect on April 1989 service separation report of medical examination, the spine was normal on clinical evaluation. However, it was noted his lumbar symptoms were consistent with mechanical pain. On separation report of medical history, the Veteran reported experiencing recurrent back pain. The Veteran filed his claim seeking service connection for a back condition in January 2004. He reported he began feeling the pain in 1986 while aboard ships due to a lot of bending and crawling along with heavy lifting. He further related that the back pain continues to bother him since service. Private treatment records from 1994 to 2004 show that beginning in May 2002, the Veteran began receiving chiropractic treatment for his lower back pain. On June 2005 VA joint examination, the Veteran reported experiencing lower back pain since service. On physical examination, there was objective evidence of painful motion with range of motion studies, along with evidence of incoordination without any weakness and fatigability. Lumbosacral spine x-rays revealed degenerative disc disease with narrowing sclerosis and facet arthritis. In a November 2005 VA examination addendum report, it was opined that the Veteran's current degenerative disc disease did not likely begin in service. It was noted that he had a previous examination (presumably service separation examination) where he was diagnosed with mechanical back disorder, meaning there was no structural or skeletal changes. In addition, there is no history of any specific single incident of lumbosacral injury which the Veteran sustained. The changes noted on x-rays at the present time are fairly localized in one disc area with facet involvement. It was opined that these kind of changes are not likely to be due to wear and tear from general daily activities. At a September 2006 hearing before a Decision Review Officer, the Veteran related that his back problems began during service due to duties that involved a lot of heavy lifting and bending. He indicated he learned to tolerate the pain and did not seek treatment for a long time. VA treatment records from April 2006 to February 2010 include an April 2006 report noting the Veteran's complaint of back pain. In a May 2006 report, he denied having any muscle or joint pain. A May 2007 report found on physical examination the Veteran's gait and station were without abnormality. A July 2007 report found no disturbances of gait or station. A February 2008 report found no disturbance of gait or station. At the October 2010 Travel Board hearing, the Veteran testified that his duties during service included a lot of crouching, ducking, bending and other activities, including moving heavy objects. He further testified that he began feeling back pain while in service. He indicated he has medicated himself as a form of treating his back symptoms. On June 2011 VA joint examination, the examiner diagnosed the Veteran with degenerative disc disease with mild limited motion and pain. The examiner noted that the Veteran's service treatment records are silent for a lumbar spine disability and his spine was normal on clinical evaluation. In addition, it was noted that there was no evidence of ongoing medical care until October 2002. The examiner opined that degenerative disc disease are age-related changes of the discs due to a loss of fluid within the disc. People in the general population develop this condition, and those who smoke, are obese, and perform heavy physical work are at a higher risk for this condition. In the Veteran's case, he is obese and has been in occupations that have been physically demanding since service. Based on the service treatment records, medical history, private treatment records and diagnostic testing, the examiner opined that the Veteran's lumbar condition was not related to the military. In February 2013, the Board remanded this matter, in part, for an addendum examination opinion to determine the nature, onset and etiology of the Veteran's back condition. In a June 2013 VA examination addendum report, it was opined that the Veteran's degenerative disc disease of the lumbar spine was not caused by or had its onset during service, was not caused by his service-connected right or left knee disability, and was not aggravated by his service-connected right or left knee disability. The physician noted that there was no documentation in the claims file to substantiate the Veteran's complaints of low back pain was a chronic problem during active service. His separation physical evidences a normal examination. Medical records do not evidence any evaluation or treatment for low back pain until 2002 when he saw a chiropractor, and radiological examination of the lumbar spine revealed degenerative disc disease in 2005. The physician stated that degenerative disc disease reflects age-related changes. People in the general population develop this condition. Significant risk factors for such include obesity and people who perform heavy physical work. In this case, the Veteran is obese and has been in occupations as a civilian that have been physically demanding. In this case, the Board finds that the Veteran has presented credible lay evidence that he has experienced low back pain since service due to his duties that involved bending and crawling along with heavy lifting. In addition, service treatment records include his report of recurrent back pain on service separation examination. Furthermore, post-service treatment records show ongoing complaints of lower back pain (beginning in 2002) and a current diagnosis of degenerative disc disease of the lumbar spine. While there is no evidence of treatment after service for the Veteran's back until 2002, a period of 13 years, the Veteran has related that he learned to tolerate the pain and that he used over-the-counter medication to treat his symptoms. Based on the foregoing, and resolving all reasonable doubt in the Veteran's favor, service connection is warranted for degenerative disc disease of the lumbar spine. 38 U.S.C.A. §§ 1131, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for lumbar spine degenerative disc disease is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs