Citation Nr: 1327360 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 12-01 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from March 1946 to February 1947, from January 1948 to May 1950, and from January 1952 to September 1956. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Montgomery, Alabama, which in pertinent part, denied service connection for a back disorder on the basis that new and material evidence had not been received to reopen the previously denied claim. The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in April 2013. A transcript of the hearing is of record. In a June 2013 decision, the Board found that new and material evidence had been received to reopen the claim of service connection for a back disorder and reopened the claim and remanded for further development, to include a VA examination. A January 2013 congressional letter requested a videoconference hearing regarding the claim. In light of the full grant of the benefit sought on appeal, no action regarding the hearing request is necessary. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran sustained an injury to his back in service while lifting an engine. 2. The Veteran has provided credible lay evidence of in-service onset of a back problems and unremitting back problems since service. 3. The Veteran's current degenerative disc disease of the lumbar spine was incurred in service. CONCLUSION OF LAW The criteria for service connection for degenerative disc disease of the lumbar spine are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). As the Board is granting the full benefit sought on appeal, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (VA Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the 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). 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, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). The Veteran is diagnosed with degenerative disc disease, which is not a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) is not applicable in this case. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); 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). Notwithstanding the above, however, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Lay evidence can be competent and sufficient evidence of a diagnosis 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). The Veteran maintains that he sustained an injury to his low back in 1949 while lifting an engine and has reported having back problems since that time, which he contends is the cause of his current degenerative disc disease of the lumbar spine. The Veteran service personnel records reveal that his military occupational specialty was that of an airplane and engine mechanic instructor. A review of the Veteran's service treatment records reveal no complaints or findings of back problems in service. At the time of January 1952, October 1952, January 1956, and September 1958 service examinations, normal findings were reported for the spine and other musculoskeletal system. The Veteran initially claimed service connection for a low back disorder in August 1979 claiming that he sustained a back injury in 1949. In support of his claim, the Veteran submitted an August 1979 letter from his private physician, W. G., M.D., indicating that the Veteran was recovering from a laminectomy. He stated that the Veteran's backache was probably directly related to his muscle strain while lifting an engine in 1948. In support of his claim, the Veteran has submitted numerous statements from various individuals attesting to the Veteran's in-service back injury and the unremitting problems with his back since his separation from service. F. K. indicated that he was stationed with the Veteran in 1949. He reported that in June 1949, the Veteran was working on an engine and it slipped out and began to fall. He noted that the Veteran almost single-handedly kept the engine from falling and hurting several of the crew. In doing so, the Veteran hurt his back. He stated that the Veteran was in much pain and could not get up. He was placed into the back of a jeep and carried to the field hospital. He noted that the Veteran was given pain medication at that time and stayed in the hospital for over a week. He indicated that when the Veteran was discharged from the hospital, he was placed on limited duty for the rest of his tenure. B. H. indicated that he had known the Veteran since 1953 and stated that they both remained assigned to Maxwell Air Force Base until 1958. He noted that he was aware that the Veteran was having back problems to the extent that he was excused from formations and drills. He stated that it was unfortunate that the Veteran's service medical records showing that he injured his back in 1949 were not available. In support of his claim, the Veteran also submitted many letters from individuals who had reported knowing him since his release from service in 1958. These individuals indicated that the Veteran had had problems with his back from the time that he had returned home from his period of active duty and stated that these problems had been present since that time. Private treatment records associated with the claims folder reveal that the Veteran was seen with complaints of low back problems as early as 1966. In a May 1966 treatment record, the Veteran was noted to have awoken with back pain over the left sacroiliac area. At a January 1991 hearing, the Veteran testified as to having seen a private physician for back problems in 1954. He reported that the physician was deceased and that the records were not available. The Veteran also noted that he was treated by several physicians in 1959 and in the 1960's but these physicians were also deceased. In an August 2010 statement, the Veteran's private physician, S. B., M.D., indicated that the Veteran's disabilities dated back to 1949 when he attempted to catch a heavy object injuring his lower lumbar spine. He noted that the Veteran was on active duty at that time. Dr. B. also indicated that the Veteran subsequently had a fall in 1955, with subsequent surgery, again while on active duty. He stated that these injuries continued to give the Veteran problems and contributed to the Social Security disability award in 1988. In conjunction with his claim, the Veteran was afforded a VA examination in September 2012. At the time of the examination, the Veteran was diagnosed as having degenerative disc disease of the lumbar spine. The Veteran reported that he had injured his low back in the service and was treated with rest, profiles, and therapy. He stated that after service his back problems rapidly progressed. He had an incident in 1969, at which time it was confirmed that he had degenerative disc disease. The Veteran reported that he had had six surgeries, the first in the 1970's and the last in 2002. Following examination, the examiner indicated that it was less likely than not that the Veteran's low back condition was related to or caused by his time on service. The examiner observed that the service treatment records were silent for any back condition. He noted the Veteran's statement that he hurt his back in service but indicated there were no service treatment records detailing any chronic back condition. The examiner stated that the treatment records showed that the Veteran's back condition started in the late 1960's, when the first disc bulge was found. This was 10 years after service. He further observed that the notes from the 1960's and 1970's referred to the onset of the condition to be at that time. It was also noted that the Veteran had occupations of a physical nature at that time in his life. At his April 2013 hearing, the Veteran testified as to the incident where he hurt his back lifting the engine in 1949, to include being hospitalized for 7 to 10 days. The Veteran stated that he was given pills for his back thereafter. The Veteran also testified as to being seen by a private physician approximately one month after service separation but stated those records were not available as the physician was deceased. He reported having problems with his back since service. The Veteran also referenced several of the affidavits that he had submitted in support of his claim. Following the hearing, as noted above, the Board found that new and material evidence had been received to reopen the previously denied claim and remanded the matter for further development, to include obtaining an additional opinion as to the etiology of the Veteran's low back disorder and its relationship to his period of service. For the purpose of rendering the opinion, the examiner was to assume that the 1949 engine incident where the Veteran claimed to have injured his back, actually occurred. The examiner was requested to render an opinion as to whether it was at least as likely as not that any back disorder was related to the Veteran's period of service, to include the 1949 engine incident. In June 2013, the requested opinion was obtained. The examiner again indicated that the Veteran's current back condition was less likely as not related to or caused by his time in the service. The examiner stated that even based on the statement from the Veteran and the data in the claims folder, the injury in service was not sufficient enough to cause the current condition. The examiner indicated that the Veteran's current condition was due to multiple repetitive injuries over the years, which was confirmed by the medical evidence. The examiner stated that the degenerative disc disease was multifocal and also at various stages on the imaging results. This confirmed multiple events and not a single event. The examiner indicated that the claims file showed the Veteran's back condition started in the late 1960's. This was when the first disc bulge was found. This was 10 years after service. He stated that the notes from the 1960's and 1970's referred to the onset of the condition at that time. The Veteran was also noted to have very physical occupations at that time which continued. The Veteran is competent to describe the type of back injury that he sustained in service. He is also competent to describe the type of back pain which is occurring. See Jandreau v. Nicholson, 492 F.3d at 1376-77. The Veteran's lay statements regarding having sustained a back injury in service are found to be credible to the extent that they have been internally consistent and are also consistent with the circumstances of his service. Additionally, the Veteran has submitted statements from individuals who were aware of the Veteran sustaining an injury to his back, to include at least one individual who was present at the time the injury was sustained. The Board finds that the Veteran's current degenerative disc disease was incurred in and is attributable to service. Entitlement to service connection for degenerative disc disease cannot be established through application of 38 C.F.R. § 3.303(b) , however 38 C.F.R. § 3.303(d) affords that 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. The Veteran has provided credible evidence of in-service back injury, he has stated that he experienced back problems in service, and has endorsed having back problems since service, which has been bolstered by the numerous lay statements submitted in support of his claim indicating that the Veteran not only had back problems in service but in the years following service. To the extent that the normal findings for the spine and lower extremities were found on the service examinations noted above, the Board finds these to be overly generalized findings and of limited probative value when compared to his current specific and consistent statements endorsing back problems in service and subsequent to service, which are bolstered by the lay and private physician statements of record. With regard to the VA examiner's opinions that the Veteran's current degenerative disc disease was not due to service, the Board finds these opinions to be of limited probative value. The examiner based his conclusion on the absence of findings of back problems in service and no notation of back problems in treatment records subsequent to service until the late 1960's. The examiner did not address the Veteran's assertions, noted in the claims folder, that he had had back problems for many years or the numerous lay statements submitted on his behalf noting the Veteran's back problems during service and in the years immediately following service. The Board further observes that the examiner did not address the Veteran's contentions that he had been seen for back problems upon his release from service but that those records were not available as the physicians were deceased. Moreover, the Veteran, as evidenced above, has submitted statements from two private physicians relating his current back problems, namely degenerative disc disease, to the 1949 engine incident. The Veteran has reported experiencing recurrent back symptomatology since service and, despite some inconsistencies, the Board finds his lay accounts to be credible. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). Therefore, as the evidence is in relative equipoise, the Board finds that the Veteran experienced recurrent back symptomatology since service discharge. As such, the evidence demonstrates credible evidence of in-service trauma, in-service onset of a back problems and unremitting back problems since service, and that the Veteran currently has degenerative disc disease. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for degenerative disc disease is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 . (CONTINUED ON NEXT PAGE) ORDER Service connection for degenerative disc disease of the lumbar spine is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs