Citation Nr: 1327164 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-44 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for degenerative disc disease of the lumbar spine with disc herniation. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from September 1998 to February 2000. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran now resides in Virginia, so the matter is now handled by the RO in Roanoke, Virginia. FINDING OF FACT The Veteran's degenerative disc disease of the lumbar spine with disc herniation is causally or etiologically due to service. CONCLUSION OF LAW Service connection for degenerative disc disease of the lumbar spine with disc herniation is established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Entitlement to Service Connection for Degenerative Disk Disease of the Lumbar Spine with Disc Herniation The Veteran seeks entitlement to service connection for degenerative disk disease of the lumbar spine with disc herniation. She asserts she injured her back during service and continues to experience back pain. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic diseases" in 38 C.F.R. § 3.309(a). Because arthritis is specifically listed as a chronic disease under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology is for application. When considering whether lay evidence is competent, the Board must determine, on a case by case basis, 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). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran's service records were reviewed. The enlistment examination from November 1997 did not indicate any spine abnormalities. There were no complaints, treatment or diagnoses of low back symptoms during service. In September 1999, the Veteran fell while jumping through a window during a training exercise. It was noted that she dropped two feet to the ground and at the time, severely sprained her ankle. The Veteran is service connected for her ankle injury. See July 2000 rating decision. Post-service records were reviewed. In April 2007, more than a year prior to filing her claim, the Veteran reported having low back pain radiating down her left leg, off and on since about five to six years prior. In January 2008, the Veteran sought treatment for chronic back pain that she stated occurred as a result of falling through a window when she was in the service. See January 2008 private treatment note. The Veteran filed her claim for a low back disorder in June 2008. The Veteran asserts she injured her back at the same time she injured her ankle but did not claim a back injury at the time because she did not think she had a serious injury. See June 2008 statement. She asserts that she has had intermittent pain since separation from service. Id. The Board notes that the Veteran is competent to comment on any symptoms, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's private physician submitted a statement in March 2009. The physician opined that after a review of the Veteran's medical history, it is more likely than not that the Veteran's current back condition is related back to her service. The physician stated that the Veteran has degenerative disc disease, which was aggravated by the fall during service and ultimately produced disc herniation at the disc level. The physician stated that it was his professional opinion that after a review of the all of the records, including those from military, that the Veteran's injuries tie her present condition with her back to her military service. Service connection degenerative disc disease with disc herniation is warranted because there is no evidence to the contrary. The Veteran's treating physician has linked her current back disorder to her time in service. Additionally, there is documented evidence of a fall during service, which at the time, resulted in a severe ankle injury. The Board finds it plausible that the Veteran did not seek treatment at the time for a less serious back injury. Additionally, the Board finds it probative that the Veteran sought treatment for low back pain years prior to her claim for service connection. As such, the evidence demonstrates a relationship between her current back disorder and her time in service. There is no opinion to the contrary regarding the relationship between her current back disorder and her time in service. Upon resolution of every reasonable doubt in the Veteran's favor, the Board determines that service connection is warranted for degenerative disc disease of the lumbar spine with disc herniation. ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine with disc herniation is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs