Citation Nr: 1329390 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 11-08 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a bilateral leg disorder, to include as secondary to a back disorder. REPRESENTATION Veteran represented by: Andrew R. Rutz, Esquire WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from July 2003 to April 2004, and from May 2006 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Although the statement of the case addressed the Veteran's disagreement with the denial of entitlement to service- connection for a respiratory disorder, the Veteran specifically limited his VA Form 9, substantive appeal, to the issues of service connection addressed herein. The issue of entitlement to service connection for a bilateral leg disorder, to include as secondary to a back disorder is remanded to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The Veteran's current thoracolumbar spine disorder is related to his second period of active military service. CONCLUSION OF LAW A thoracolumbar spine disorder was incurred in active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the Veteran's claim of entitlement to service connection for a back disorder. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2013). This is so because the Board is taking action favorable to the Veteran by granting the claim of entitlement to service connection for a back disorder. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran contends that his current back disorder began during his second period of active service. In this regard, during the June 2011 hearing before the Board, he testified that the record reflects that prior to his first period of active service, he was diagnosed with a muscle sprain of his low back by his chiropractor in February 2000, subsequent to a snow shoveling injury. He asserted that he was provided three days of chiropractic treatment, and his injury resolved. He further testified that upon induction examination, his was spine was clinically normal, and that he was able to perform his physical fitness test, which included a two mile run that he completed in approximately 13 minutes. Regarding a July 2003 service treatment record dated, the Veteran acknowledged that it indicates that he failed to tell the examiner upon induction that he had several slipped discs, and had to undergo three days of therapy for his back prior to his first period of service; however, he testified that upon assessment in August 2003, he was cleared for duty as the examiner determined that his low back pain had resolved. He further asserted that subsequent to completing his basic training, he went to his Reserve unit, and was ultimately deployed in 2006. He testified that he did not experience any back pain until August 2006, when he sought treatment for upper and lower back pain as a result of riding in the back of a truck during a training exercise and being thrown forward when the truck drove over a ditch. He also stated that he slipped on hydraulic fluid while serving in Iraq, and re-injured his back. He concluded that he experienced constant back pain since the inservice truck incident, that did not resolve in service, and continued to the present. The Veteran does not contend that his current back disorder began during his first period of active service. Service treatment records from such period include the report of a September 2002 induction physical examination, which is negative for complaints, treatment, or a diagnosis of a back disorder. See 38 U.S.C.A. § 1111 (West 2002) (a veteran is presumed 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). A July 2003 record includes the Veteran's statement that he did not report to the examiner upon induction into service that he injured his lower back which resulted in several slipped discs and three days of therapy. The Veteran further stated that he was concerned that he still had pain in his low back when he stood or sat for long periods, and that such pain would have an adverse effect on his training. A July 2003 private record from the Veteran's chiropractor indicates that the Veteran was treated in February 2000 for a lumbar sprain/strain which developed while shoveling snow. An August 2003 record notes the Veteran's report of a slipped disc in February 2000; upon examination, the examiner assessed resolved low back pain, and cleared the Veteran for duty. Service treatment records for the Veteran's second period of active service include the report of an August 2006 record which shows the Veteran sought treatment for upper and lower back pain, as a result of riding in the back of a truck during a training exercise, and being thrown forward when the truck drove over a ditch. The examiner noted tenderness from the left trapezius muscle to the thoracolumbar area. A subsequent August 2006 record notes the Veteran's complaint of low back pain over the years; the examiner assessed a low back strain. A September 2006 record notes the Veteran's report of low back pain and numbness and tingling down his hands for the past three weeks; the examiner assessed unknown lower back pain and discomfort down the left leg with a possible pinched nerve. The report of a March 2007 post-deployment heath assessment includes the Veteran's report of back pain and muscle aches (area of body was not specified). The report of an April 2007 post deployment examination notes the Veteran's complaint of recurrent back pain that comes and goes which can be alleviated with medication; the report is negative for a diagnosis of a back disorder. The report of an August 2007 post deployment heath assessment includes the Veteran's report of back pain and muscle aches (area of body was not specified). Post-service records include an April 2009 U.S. Marine Corps Reserve record which indicates that the Veteran was placed in a temporarily not physically qualified status due to his low back pain. A private treatment record dated in November 2008 notes the Veteran's complaint of low back. VA outpatient records dated in December 2008 note the Veteran's complaints of low back pain. A December 2008 VA emergency room record notes the Veteran's complaint of chronic low back pain; the assessment was chronic low back pain with exacerbation. VA outpatient records dated in 2009 note the Veteran's complaints of chronic low back pain since his inservice injury in August 2006 when he was thrown forward while riding in the back of a pickup truck. April 2009 VA and private Magnetic Resonance Imaging (MRI) testing of the thoracolumbar spine demonstrates degenerative disc disease at L4-L5 with central herniation of the disc, and mild spinal stenosis; degenerative disc disease at L5-S1 with facet arthropathy with herniation of the disc impinging on the S1 nerve roots in the thecal sac, and mild stenosis; and a bulge of the T6-T7 discs. A VA examination report dated in July 2009 notes the Veteran's complaints of low back pain that began in August 2006, during service, as a result of being thrown around in the back of a pickup truck. He further reported that his pain worsened when he deployed to Iraq later that year. Upon examination and review of the claims file, the examiner assessed thoracolumbar herniated discs at L4-5 and L5-S1, as well as degenerative disc disease. A VA examination report dated in February 2010 notes the Veteran's complaints of low back pain that began in August 2006, during service, as a result of being thrown around in the back of a pickup truck. The Veteran noted that he while serving in Iraq in November 2006, he fell backwards and landed on his back. The Veteran also noted that prior to active service, he had a back ache for two or three days as a result of shoveling snow. Upon examination and review of the claims file, the examiner assessed mild lumbar degenerative disc disease with spondylosis, lumbar discogenic disease, and thoracic discogenic disease. The examiner opined that the Veteran's current back disorders were "less likely as not" permanently aggravated by the injury the Veteran sustained in August 2006 while riding in the back of a seven ton truck. In providing the opinion, the examiner noted that the Veteran had a documented pre-existing back injury in February 2000, and by his own admission in July 2003, the Veteran stated that he continued to experience back pain. The examiner stated that it "is at least as likely as not" that the Veteran's original back injury in February 2000, while shoveling snow, was the precipitating incident that caused his current discogenic disease. The examiner concluded, that since the Veteran's back symptoms were an ongoing problem, then there was no permanent aggravation of the preexisting condition. A statement dated in March 2010 was submitted on behalf of the Veteran from a fellow serviceman who served with the Veteran during the Veteran's second period of service. The serviceman reported that knew the Veteran for several years, as they were in the same platoon prior to deploying to Iraq in 2006, and also in the same squadron while serving in Iraq. The serviceman reported that he recalled that the Veteran injured his back during a training exercise while sitting in the bed of a pickup truck, when the truck hit a bump, and the Veteran "went flying." He further reported that he remembered that the Veteran struggled thereafter during their service in Iraq, as the Veteran had difficulty with easy tasks, such as taking out the trash or moving boxes of food for the detainees. A statement dated in March 2010 was submitted on behalf of the Veteran from M.H., the Veteran's supervising officer from April 2007 until the Veteran dropped to the Inactive Ready Reserves, in July 2009. M.H. reported that during the time he spent with the Veteran, the Veteran complained of back pain, for which he sought medical treatment. He reported that the Veteran's performance decreased during each drill, and such decline was due to the fact that the Veteran could barely walk. M.H. further recalled that the Veteran sat for extended periods of time, and reported that he was in severe pain. M.H. stated that the Veteran did not participate in annual training with the unit in 2009 because of his inability to perform due to his back problems. The Board finds that the evidence of record supports a finding of service connection for a thoracolumbar spine disorder. Post-service VA examination reports show current diagnoses of thoracolumbar herniated discs at L4-5 and L5- S1, and degenerative disc disease in July 2009, and mild lumbar degenerative disc disease with spondylosis, lumbar discogenic disease, and thoracic discogenic disease in February 2010. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Although the February 2010 VA examiner provided a negative opinion, indicating that the Veteran's current back disorders were not permanently aggravated by service, the examiner based such opinion upon an inaccurate assessment of the record, as he found the Veteran had preexisting back disorder. As discussed above, a back disorder was not noted on the Veteran's service entrance examination, and therefore, the Veteran is presumed sound upon induction into service. See 38 U.S.C.A. § 1111. Accordingly, the February 2010 VA examination report is of no probative value. Although the record does not include a competent medical nexus opinion that relates the Veteran's current thoracolumbar spine disorders to his military service, continuity of symptomatology and treatment may serve as a basis to establish service connection. In this regard, the Board finds the Veteran's testimony and statements regarding lower and upper back pain, to include onset during service and continuity since separation, to be competent and credible evidence, as these are symptoms that are observable. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Veteran's account as to his symptomatology has been consistent and the medical evidence of record supports his account, as service treatment records for his second period of active service indicate such complaints. Moreover, the aforementioned statements from the Veteran's fellow servicemen corroborate his inservice injuries and continued back pain. Further, there are current diagnoses of thoracolumbar herniated discs at L4-5 and L5-S1, lumbar degenerative disc disease, spondylosis, and thoracic discogenic disease. Accordingly, the Board finds that the evidence is at least in equipoise with regard to this claim, and therefore, with application of the benefit of the doubt doctrine, service connection for a thoracolumbar spine disorder, is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a thoracolumbar spine disorder is granted. REMAND The Veteran contends that his current bilateral leg disorder began during his second period of active service, or in the alternative, is due to his thoracolumbar spine disorder. By the decision above, the Board has granted service connection for the Veteran's thoracolumbar spine disorder. Service treatment records for the Veteran's second period of active service demonstrate that he sought treatment for intermittent pain shooting down his left leg in September 2006, shortly after he sought treatment for upper and lower back pain as a result of riding in the back of a truck and being thrown forward when the truck drove over a ditch. The examiner assessed discomfort down the left leg with a possible pinched nerve associated with unknown low back pain. The report of a March 2007 post-deployment heath assessment includes the Veteran's report of muscle aches (area of body was not specified). The report of an April 2007 post deployment examination is negative for complaints of pain or a diagnosis of a right or left leg disorder. The report of an August 2007 post deployment heath assessment includes the Veteran's report of muscle aches (area of body was not specified). Post-service records include a private record dated in November 2008, which notes the Veteran's report of low back pain that radiates to his left leg. VA outpatient treatment records dated in 2009 note the Veteran's complaints of occasional shooting pain down the right leg associated with complaints of chronic low back pain. A VA examination report dated in July 2009 notes the Veteran's complaints of radiating pain down his right leg while serving in Iraq, subsequent to the aforementioned low back injury that occurred in August 2006. The Veteran further reported that he currently experienced occasional radiating pain down his right and left legs. Upon examination and review of the claims file, the assessment was lumbar radiculopathy. A VA examination report dated in February 2010 notes the Veteran's report of radiating pain down his right leg since August 2006. Upon examination and review of the claims file, the examiner determined that there was no evidence of lumbar radiculopathy or peripheral neuropathy of either lower extremity. Although the February 2010 VA examiner found that the Veteran did not have any current diagnosable lumbar radiculopathy of the right or left leg, the requirement for a current disability is satisfied if there is evidence of the disability at any time since the Veteran's claim in June 2009. McClain v. Nicholson, 21 Vet. App. 319 (2008). Accordingly, a medical opinion addressing the etiology of the Veteran's lumbar radiculopathy diagnosed during the July 2009 VA examination is necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the evidence of record, to include the claims file and all electronic records, to include Virtual VA, must be made available to the February 2010 VA examiner, and the examiner must specify in the examination report that these records were reviewed. If the VA examiner who conducted the February 2010 examination is unavailable, an appropriate VA examiner must be directed to provide the supplemental finding to the February 2010 VA examination. If the VA examiner determines another examination is necessary to provide the finding, an examination must be scheduled. Based on all the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether the July 2009 diagnosis of lumbar radiculopathy is related to the Veteran's active military service, or due to or aggravated by the Veteran's now service- connected thoracolumbar spine disorder. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The addendum report must be reviewed by the RO to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 4. Once the above actions have been completed, the RO must readjudicate the Veteran's claim on appeal, taking into consideration any newly acquired evidence. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs