Citation Nr: 1328702 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 08-16 340A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a claimed low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to July 1975. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the RO. In January 2011, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge; a transcript of this hearing is associated with the claims file. The records in the Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed and considered. In March 2011, the Board remanded the issue for further development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The currently demonstrated low back disability manifested by degenerative disk disease and degenerative joint disease is shown as likely as not to be due an injury sustained during the Veteran's period of active service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his low back disability manifested by degenerative disk and joint disease is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. To the extent that the action taken hereinbelow is favorable to the Veteran, a discussion of VCAA is not required at this time. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Analysis In January 2011, the Veteran testified at a hearing that his low back disorder was related to service on a direct basis or alternatively was secondary to his service-connected residuals of a fracture of the right great toe. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran reports injuring his low back disorder during his period of active service. In January 2007, the Veteran stated that he strained his back during service as a Weapons Release Mechanic doing heavy lifting on a daily basis. In June 2011, he asserted that, while serving in Thailand from 1972 to 1973, he worked 12 hours per day, seven days per week loading equipment on to aircraft. According to Charles v. Principi, 16 Vet. App. 370, 374 (2002), the Veteran is competent to provide lay evidence of a history of back injuries while in service. Furthermore, 38 U.S.C.A. § 1154(a) provides that consideration shall be given to the places, types, and circumstances of service as shown by his service records, his medical records, and all pertinent medical and lay evidence. The Veteran's DD Form 214 shows that his duties were as weapons mechanic during service. A letter dated in February 2008 from the Department of the Air Force showed that he served in Thailand from 1972 to 1973 in support of our forces in the Vietnam conflict. The Veteran's service personnel records show that, from November 1973 to October 1974, he was a member of the Weapons Loading team. His duties were noted to include those of loading and unloading arms assigned to B-52G aircraft. The service treatment records showed that, in June 1972, the Veteran sought medical attention for complaints of low back pain while swimming. The examiner noted that his chief complaint was that of low back strain. The submitted private medical records dated in April 1989 showed x-ray evidence of spondylolisthesis of L5 on S1 and degenerative disc disease of L5 on S1. The records dated in July 2000 showed that the Veteran had a diagnosis of Grade III spondylolisthesis at L5-S1 and L5-S1 foraminal stenosis and underwent lumbar decompression and fusion. The subsequent medical records showed that the Veteran underwent additional low back surgeries. A CT myelogram in September 2005 also showed mild retrolisthesis. On VA examination in April 2011, the diagnosis was that of multilevel degenerative disk disease and degenerative joint disease. A CT scan in February 2012 shows anterolisthesis in the lower back. As there is evidence of a current disability and an inservice incurrence of a disease or injury, the first and second Shedden elements have clearly been satisfied. It is noteworthy that, in a December 2006 letter, the Veteran's former employer stated that he had not sustained any injuries as a police officer serving from 1977 to 1993. What remains to be established is whether the Veteran's current low back disorder is related to an event or incident of his service. There are three medical opinions of record, two are favorable to the Veteran's claim and one is unfavorable. In an October 2007 letter, the Veteran' private doctor, Dr. J.C.S., a neurosurgeon stated that the Veteran had developed degenerative disk disease as the result of heavy lifting during service "which contributed to the degenerative nature of his spine." In April 2008, the Veteran's private doctor, Dr. J.B., a neurologist, noted that the he had sustained an extensive strain to his low back during service in 1972 or 1973 that had progressed through the years with a gradual slow progressive degenerative course until 1988 when he was found to have a multilevel lumbar spondylosis and herniated disks requiring surgery. Dr. J.B. was of the opinion that, after treating the Veteran for four years, his chronic degenerative disorder could be attributable to the low back strain that happened during service in connection with heavy work on machinery and his bomb loading duties. Dr. J.B. concluded that the degenerative disorder was a lifelong event and multiple factors contributed to the degeneration, and the military trauma was one of several likely factors. On VA examination in April 2011, the Veteran reported lifting 500 pound bombs to be attached to the racks of jet fighter bombs during service that caused deterioration of his lumbar spine and eventually manifested itself as an L5-S1 retrolisthesis in the late 1980s. The VA examiner was of the opinion that, given the Veteran's increased weight and present body index the Veteran's low back disorder, affecting L5-S1, L4-5, and L2-3 was not likely due to normal wear and tear, with increasing weight over the years. The examiner concluded that the diagnosis was that of multilevel lumbar degenerative disk disease progressing over the years requiring multiple fusions, which was likely caused by "propensity to low back degenerative joint and disk disease accelerated by the (V)eteran's body habitus and not by lifting or swimming injuries in the military." The Board finds that, on the question of whether the Veteran's low back disorder was related to service, the Veteran's lay statements, together with the two favorable medical opinions that accurately addressed the evidence of record, serve to draw the evidence into a state of relative equipoise in showing that the current low back degenerative disease as likely as not was due to a pattern of repetitive injury that began during his period of active service. Therefore, the reasonable doubt created by the evidence must be resolved in the Veteran's favor. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. ORDER Service connection for a low back degenerative disease is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs