Citation Nr: 1327533 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 10-28 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for lumbar spine strain with lumbar disc degeneration and facet arthritis (lumbar spine disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2006 to May 2007. He had prior active duty for training. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned at a Travel Board hearing in March 2013. The hearing transcript is associated with the Veteran's electronic file. Otherwise, the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system reveal documents that are either duplicative of the evidence of record or are not pertinent to the appeal. FINDING OF FACT The Veteran's lumbar spine strain with lumbar disc degeneration and facet arthritis is related to an event in service. CONCLUSION OF LAW Lumbar spine strain with lumbar disc degeneration and facet arthritis was incurred in service. 38 U.S.C.A. §§ 1110 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION To the extent that the action taken hereinbelow is favorable to the Veteran, a full discussion of compliance with VA's duty to notify and assist is not required at this time. Law & Analysis 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. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307(a), 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). In this case, the Board finds that service connection for a lumbar spine disability is warranted for the reasons set out below. The Veteran contends that his current lumbar spine disability resulted from an event in service where he sustained injury to his back while being transported wearing heavy gear weighing approximately 40 pounds in the back of a five-ton truck (sitting on wooden, unpadded benches), traversing through rough roads. The Board finds that his statements are consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). He stated that several months after separation from service, he began to notice pain and loss of movement in his lower back. He sought chiropractic treatment from J.E., a chiropractor, as early as January 2008 for his back condition. The Veteran testified that he did not have an onset of his disability in service, and his service treatment records reflect that the Veteran left service without any back complaints or problems. In support of his claim, the Veteran submitted his own statements, buddy statements, and private treatment records from his chiropractor to demonstrate a positive nexus between the event in service (riding in the back of a truck with heavy gear) and his current lumbar spine disability. The Board notes at the outset that the Veteran is competent to relay what he has experienced. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is also competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Thus, the Veteran's statements as to the onset of his back injury, reports of symptomatology, and recitations of diagnoses and opinions from his treating physicians are all deemed to be competent evidence. The January 2008 examination report (although report indicates a July 2008 print date) by Chiropractor J.E. indicates that J.E. considered the Veteran's subjective complaints, to include his complaints of lumbar pain due to riding in the back of the truck wearing full gear. Objective tests were performed and the Veteran indicated that X-ray studies were performed. J.E. made an assessment that the Veteran had a lumbar sprain/strain and indicated that his condition was degenerative. Records show that he received continuous treatment through July 2008. A recent March 2013 letter by J.E. reports findings from an earlier examination which documented the progression of the Veteran's lumbar spine disability. A notation of X-ray review was made, and J.E. indicated these studies were consistent with lumbar degenerative disc disease. He provided a medical opinion as follows, "I have been treating [Veteran] for the previously mentioned diagnoses and it is my medical opinion that his condition is directly related to riding in the back of a 5 ton military vehicle. Compression from impact as well as lifting, bending, and twisting caused injury to the [Veteran's] discs consequently causing degeneration." J.E., the Veteran's treating chiropractor, provided an etiological opinion with sufficient rationale based on objective and subjective findings. As such, the Board assigns probative weight to such evidence. An MRI was later conducted by Dr. W.G. for the lumbar spine in April 2013, which revealed mild facet joint arthropathy of the lumbar spine. The Veteran also underwent a VA examination in January 2009. After performing a physical examination, the VA examiner believed that the Veteran's lumbar strain predominant one year ago was now mostly resolved. X-ray studies indicated some lower lumbar disc degeneration and facet arthritis. However, the VA examiner was unable to provide a medical etiological opinion as to nexus as he indicated that it would be speculation for him to provide such an opinion. As a result, the Board does not assign much probative value to this opinion. Thus, the Board finds Chiropractor J.E.'s etiological opinion to be more probative as he has had a longer history of treating the Veteran for his lumbar spine disability and he provided sufficient supporting rationale to explain how the Veteran's chronic and degenerative condition is directly related to him riding in the back of the truck in service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In resolving all reasonable doubt in the Veteran's favor, service connection for the Veteran's lumbar spine disability is warranted. ORDER Service connection for a lumbar spine strain with lumbar disc degeneration and facet arthritis is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs