Citation Nr: 1328012 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 12-35 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD C. Ozger-Pascu, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDINGS OF FACT 1. The Veteran was seen on multiple occasions in service for back complaints. 2. The Veteran credibly described on-going back problems since service. 3. A VA medical opinion links current back disability to service, and a subsequent addendum opinion is adverse to the claim. 4. The evidence of record is in equipoise as to whether the Veteran's lumbar spine disability, diagnosed as lumbar spine strain with grade 1 spondylolisthesis with spondylolysis at L5, is due to service. CONCLUSION OF LAW The criteria for service connection for lumbar spine strain with grade 1 spondylolisthesis with spondylolysis at L5 have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this decision, the Board grants service connection for lumbar spine strain. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary because the Veteran is not prejudiced. Service Connection Service connection may 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, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection requires a finding that there is a current disability that has a definite relationship to an injury or disease or some other manifestation of the disability incurred during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). As an initial matter, the Board notes that the evidence of record sufficiently establishes the Veteran's current diagnosis of lumbar spine strain, with grade 1 spondylolisthesis with spondylolysis at L5. This diagnosis was established by an examination conducted for VA purposes in April 2011. The determinative issue, therefore, is whether this diagnosis is related to military service. The Veteran's service treatment records show that at his entrance examination no abnormalities of the spine were noted. In October 1977, the Veteran reported lumbar pain after lifting the heads off the engine of a two-and-a-half-ton truck two weeks prior. The Veteran was diagnosed with muscle strain and slight tenderness of the spine. The next day, the clinician noted the "suggestion" of pars defect of the fifth lumbar vertebra and minimal spondylolisthesis. The Veteran presented with complaints of back pain on other occasions during service, including in 1979 and 1980. The Veteran was afforded a VA examination in April 2011. Upon review of the claims file and physical examination of the Veteran, the examiner diagnosed the Veteran with lumbar spine strain, with X-rays showing grade 1spondylolisthesis with spondylolysis at L5. The examiner opined that the Veteran's lumbar strain was as likely as not related to the Veteran's multiple in-service treatments for complaints of lumbar pain. She also noted there was no record of treatment for the back between 1980 and 2010. The RO sought clarification and in a May 2011 addendum, the examiner opined that the Veteran's lumbar spine strain was not likely related to documented in-service complaints, citing the lack of documented complaints or treatment since service. The Veteran, however, in his August 2011 notice of disagreement accounted for this when he credibly reported he cared for his back over the years on his own, until it had progressed to the point that this was no longer possible, and he filed his claim. Given the VA examiner's initial opinion, together with the Veteran's account of his medical history, the evidence is in equipoise as to whether the Veteran's current back disorder was incurred in service. Resolving reasonable doubt in favor of the Veteran, the appeal is granted. ORDER Entitlement to service connection for a back disability, diagnosed as lumbar spine strain, with grade 1 spondylolisthesis with spondylolysis at L5, is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs