Citation Nr: 1327993 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 11-11 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a low back disability, currently diagnosed as degenerative disc disease of the lumbar spine at L5-S1. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from September 1988 to December 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2011 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing held at the RO. A transcript of the hearing is of record. FINDING OF FACT It is at least as likely as not that the Veteran's lumbar spine disability, diagnosed as degenerative disc disease of the lumbar spine, L5-S1, is etiologically related to active service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, a lumbar spine disability, diagnosed as degenerative disc disease of the lumbar spine, L5-S1, is etiologically related to active service. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the decision below, the Board has granted the Veteran's claim for service connection for a lumbar spine disability, diagnosed as degenerative disc disease of the lumbar spine at L5-S1. Therefore, regardless of whether the VCAA duties to notify and assist have been met in this case with regard to his service connection claim, no harm or prejudice to the appellant has resulted. As such, the Board concludes that any defect in providing notice and assistance to the Veteran is at worst harmless error in that it does not adversely affect the essential fairness of the Board's adjudication of the claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Legal Analysis 38 U.S.C.A. § 1111 sets forth governing principles relating to the presumption of a Veteran's soundness of condition upon entry to service. It provides that "every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service." Id. The implementing regulation, 38 C.F.R. § 3.304(b), similarly provides that a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A history of preservice existence of a disease or injury recorded at the time of examination does not constitute a notation of such a malady, but instead, must be considered with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). A veteran thus enjoys an initial presumption of sound condition upon service entry if the enlistment records do not reflect that a veteran has a disease or injury that subsequently becomes manifest during service. Wagner v. Principi, 370 F.3d 1089, 1096 (2004) (noting that "[w]hen no preexisting condition is noted upon entry to service, the veteran is presumed to have been sound upon entry," but that "if a preexisting disorder is noted upon entry to service, the veteran cannot bring a claim for service connection for that disorder"). Such an initial presumption, however, is not absolute and may be rebutted. Wagner, 370 F.3d at 1096-1097. Section 1111 permits VA to overcome the presumption of soundness upon a two-prong showing by clear and unmistakable evidence of both a preexisting condition and a lack of inservice aggravation to overcome the presumption of soundness for service. Id. If the government fails to demonstrate either prong, the rebuttal fails and the soundness presumption remains. Id. (recognizing that the government's failure to rebut the soundness presumption means that the veteran's claim is one for direct service connection); see also Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The government's "burden of proof is a formidable one," Id., and it "means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999); accord Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003) (noting that "[t]he clear-and-unmistakable-evidence standard is an 'onerous' one"). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 ; 38 C.F.R. § 3.306(a). Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b)(1); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran contends that service connection is warranted for a low back disability, currently diagnosed as degenerative disc disease of the lumbar spine, L5-S1. Specifically, he claims that as a result of the physical labor type duties he was required to perform during service as a boatswain mate, he repeatedly stressed his back, and these stresses and overuse of his back resulted in his current lumbar spine disability. He indicated that during the last few years of service, he worked a desk job and did not have the strenuous work environment. Therefore, although he continued to have some back pain, he did not seek medical attention during the latter part of his service for it. He also indicated that after service he worked in management and therefore did not perform strenuous labor during his civilian career. The Veteran's July 1988 service enlistment examination report reflects that examination of the spine was normal. The enlistment examination report of medical history indicates that the Veteran denied recurrent back pain. The Veteran underwent an X-ray study of his lumbosacral spine in September 1988. It was noted that he had complained of a four year history of back pain in the lumbar spine. The X-ray was within normal limits except for a suggestion of a rudimentary interspace between S1 and S2, which was thought to possibly represent a congenital variation segmentation and an attempt at lumbarization. A September 1988 service treatment record notes that the Veteran was seen for a complaint of low back pain. It was reported that he had been in a motor vehicle accident in 1984, and had had back pain off and on since then. He reportedly had been seen by a civilian physician but there was no known diagnosis. Examination revealed full range of motion. X-rays of the lumbosacral spine were noted to be normal. The assessment was muscle strain. The Veteran was prescribed Flexeril. An April 1989 service treatment record notes that the Veteran presented with complaints of lower back pain of three to four days duration. It was noted that he was working in the gallery capping boxes and washing dishes. The pain was described as sharp, off and on. Examination revealed no deformity, good flexibility, tenderness to L3-L4 region on palpation, and no spasm. Straight leg lifts were negative. The assessment was low back strain. He was instructed to take Tylenol, apply Ben-Gay ointment, apply a warm compress to the area, and to return to the clinic as needed. A December 1990 service treatment record notes that the Veteran complained of low back pain since the previous night. The Veteran described the pain as sharp and throbbing, which increased when walking and decreased when lying flat. The Veteran denied a history of trauma. It was also noted that the Veteran had been painting the ship the last few days. Examination revealed tenderness at the distal coccyx. The assessment was bruised coccyx. A September 1993 service treatment record notes a complaint of low back pain which had been present for two days. It was reported that there had been no trauma. The assessment was "lower back pain (muscle spasm)." An August 1994 service treatment record notes a complaint of low back pain. It was noted that the Veteran had been busy with physical work on deck, but that he had no specific injury. On examination there were no notable deviations of the spinal column and no muscle spasm. There was pain on palpation generally of the lumbosacral spine. The assessment was lumbosacral strain. A November 1994 five-year service physical examination report reflects examination of the spine was normal, and the accompanying report of medical history reflects that the Veteran denied recurrent back pain. The December 1997 service separation examination report notes normal examination of the spine and the service separation report of medical history reflects the Veteran's denial of recurrent back pain. A January 1999 enlistment examination report for the U.S. Naval Reserves indicates that examination of the spine was normal and the accompanying report of medical history indicates that Veteran denied recurrent back pain. A February 2001 VA treatment record reflects that the Veteran complained of back pain. A February 2009 private treatment record notes that the Veteran's chief complaint was low back pain and left leg numbness since November 2008. It was noted that the Veteran had a left L5-S1 microdiscectomy in January 2009. It was also noted that he has L4-S1 degenerative disc disease and L5-S1 herniated nucleus pulpous. The private physician opined that the Veteran's description of military duties (leaning over the edges of ships, painting, and lifting heavy conduits refueling other ships) certainly suggests that these activities more likely than not play a part in his two level disc degeneration. A June 2009 VA examination report noted as medical history that the Veteran had had five to six years of low back pain, which cumulated into a "slipped disc" that was surgically repaired in January 2009. The examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine, L5-S1. The examiner opined that the current lumbar problem is not caused by, a result of, aggravated by, or aggravated beyond its natural progression by military service. The examiner stated that this is because the lack of continuity of care. Notably, the examiner stated that the Veteran did not have any problems with the back from 1988 to 2004-2005. A December 2010 VA examination report notes that the Veteran was seen several times for back pain during his military service. It was noted that he has had two back surgeries in 2009 and one in 2010. The diagnosis was L4-S1 degenerative disc disease/protrusions. The examiner acknowledged that the record reflects that the jobs the Veteran performed in service included heavy lifting, riggings, wire sloughing, hanging off the side of a ship with a harness, and standing for long periods of time. The examiner further noted that the Veteran was seen multiple times for low back pain while in the military, but reports of medical history from 1994 and 1997 indicate that he checked no for recurrent back pain. The examiner found that, "given the multiple visits for low back pain while in the service, the fact he checked no for recurrent low back pain in 1994 and 1997 and the left leg numbness that has been present since 11/2008 along with his right-sided radicular symptoms at present, I would state that I cannot resolve this issue without resorting to mere speculation if his current back condition is related to the back pain noted in the service or related to the jobs he had to perform while in the service." In a February 2011 addendum, the December 2010 VA examiner clarified that the jobs the Veteran performed in service could predispose him to back pain; however, to what extent these jobs did so, the examiner could not resolve that issue without resorting to mere speculation. In the present case, it appears that the Veteran had a prior history of back pain, but it has not been shown by clear and unmistakable evidence that degenerative disc disease of the lumbar spine at L5-S1 both preexisted military service and was not aggravated thereby. Consequently, the presumption of soundness is not rebutted. With regard to service connection on a direct incurrence basis, there is evidence in the service treatment records of back complaints related to military duties. Although the Veteran was not diagnosed with a back disability at service separation, or within one year after discharge, and he has not claimed to have had ongoing back symptoms since service, the medical evidence is in equipoise with respect to whether his currently diagnosed lumbar spine disability is etiologically related to service. The Board notes that the June 2009 VA examiner provided an opinion against the claim; however, the rationale for the opinion is that there was no continuity of care. Specifically, the examiner reasoned that the Veteran did not have any problems with his back from 1988 to 2004 or 2005. The Board notes that the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 548 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Accordingly, the Board concludes that the June 2009 VA medical opinion is of limited probative value and is not sufficient to raise a reasonable doubt. Here, the opinion is based upon an inaccurate factual premise. Notably, a February 2001 VA treatment record reflects the Veteran's complaint of back pain. Therefore, there is evidence of back pain prior to 2004. Moreover, the lack of ongoing care for the Veteran's back since service, although one factor to be considered, is not dispositive of a claim for service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim). Finally, the examiner did not address the Veteran's numerous in-service back complaints. The record also contains a private medical opinion stating that the Veteran's in-service physical labor duties more likely than not play a part in his two level disc degeneration. This opinion is favorable to the Veteran's claim, and is based on the Veteran's statements regarding his in-service physical labor duties, which are supported by the record. Additionally, although the December 2010 VA examiner concluded that an opinion regarding the etiology of the Veteran's degenerative disc disease at L4-S1 could not be provided without resort to mere speculation, in the February 2011 addendum opinion, the examiner stated that the jobs the Veteran performed in service could predispose the Veteran to back pain. In light of the Veteran's numerous back complaints during service and the private medical opinion in favor of the claim, which is supported in part, by the February 2011 VA addendum opinion, and not contradicted by the other competent evidence of record, the Board finds that the evidence of record is at least in equipoise concerning whether the Veteran's current lumbar spine disability is related to his active duty. Accordingly, the Board will resolve the benefit of the doubt in favor of the Veteran in this case as the law requires and grant service connection for a lumbar spine disability, currently diagnosed as degenerative disc disease of the lumbar spine at L5-S1. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). ORDER Entitlement to service connection for a lumbar spine disability, currently diagnosed as degenerative disc disease at L5-S1 is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs