Citation Nr: 1330031 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 11-14 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a lumbar spine disability, to include lumbar strain. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active military service from July 1991 to April 1995 and from July 2008 to July 2009. He also had additional Army Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In September 2011, the Veteran provided testimony at a Travel Board hearing, conducted in at the RO in Detroit, before the undersigned Veterans Law Judge (VLJ), the transcript of which is of record. In October 2011, the Veteran submitted additional evidence to the Board in the form of two private medical letters. The Veteran waived review of the newly submitted evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304(c) (2012). Thus, the Board will consider such evidence in the adjudication of this appeal. FINDING OF FACT The Veteran's lumbar strain and lumbar scoliosis are as likely as not attributable to his active military service. CONCLUSION OF LAW The criteria for service connection for lumbar strain and lumbar scoliosis are met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2012). In this decision, the Board grants service connection for a lumbar spine strain. This represents a complete grant of the benefit sought on appeal for this issue. Thus, any deficiency in VA's compliance with its VCAA duties to notify and assist as to this issue is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. In September 2011, as noted above, the Veteran testified a Travel Board hearing before the undersigned VLJ. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Travel Board hearing in September 2011, the issue on appeal was fully explained by the VLJ. The VLJ asked questions to ascertain the existence of any outstanding potentially available evidence which could help substantiate the claim. Furthermore, the decision herein is a complete grant of the issue on appeal. As such, the maximum benefit sought has been granted, and the Veteran may not be held to have been prejudiced by any deficiency in fulfilling the duties set forth in 38 C.F.R. § 3.103(c)(2). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303 (2012). To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In service connection claims consideration must be given to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a). The Veteran satisfies the existence of the present disability standard with regard to a lumbar spine disability. In July 2009, the Veteran underwent a VA general medical examination of the spine, and was diagnosed with lumbar spine strain. VA X-ray examination in August 2009 revealed mild levoconvex scoliosis of the lumbar spine. In December 2009, the Veteran underwent another VA spine examination and was diagnosed with very mild scoliosis of the lumbar spine without any residuals of trauma. Thus, the Board finds the Veteran does have current disability of the lumbar spine. The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, during the claim, or to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran's DD-214, for period from July 1991 to April 1995, when the Veteran states his back pain began, list his military occupation as Infantryman. The Veteran's DD-214, for the period from July 2008 to July 2009, lists his military occupation as Military Police and reflects that he had service in Afghanistan from August 2008 to June 2009. The listed awards and decorations he received included the Afghanistan Campaign Medal with Campaign Star, and the Bronze Star Medal. The Veteran's statements that he engaged in heavy lifting and physical fitness training are consistent with both of his military occupational specialties. Finally, in June 2009, the Veteran's service treatment records (STRs) contain notations of back pain, as do other medical records dating back to March 2001. Thus, the element of the incurrence of an in-service injury is met. In this case, the Veteran is competent to describe the symptoms of back pain that he is experiencing and when the symptoms onset. Furthermore, the Veteran is competent to observe that he had back pain in service coincident with carrying heavy loads, as such is within the realm of common observation. At the July 2009 VA examination, the Veteran reported he experienced low back pain including fatigue, decreased motion and stiffness. At the December 2009 VA examination, the examiner noted the Veteran complained of pain in the midsection of the lumbar area. The Veteran is competent to report on these symptoms as they are based on his experience and personal knowledge and come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Veteran is credible with respect to his assertions of experiencing back pain in service and since service. His statements are credible because they are consistent in that he maintains the back pain began while he was in service. The July 2009 VA examination report indicates that the Veteran's low back pain onset at least 5 years ago and was due not to a specific injury but was due to carrying heavy loads. The December 2009 VA examination report stated that the history of the back pain began around 2000. In September 2011 testimony, the Veteran stated his back pain began during 1991 to 1995 and disputes any VA examination report that indicates the back pain onset later. The Veteran testified he did not seek treatment in service because he was told if he continued to pursue the injuries (knees, feet and back), then he would be medically boarded and forced out of the service. He further testified his back pain was noted in medical records in 2001 and 2003, which is supported by the evidence of record. The Veteran also testified that there was a language barrier with the doctor at the December 2009 VA examination and that the examiner did not look at any of the records the Veteran brought with him. The Veteran also submitted private medical letters, received by VA in October 2011, one of which stated that the Veteran's back pain is more likely than not related to the strenuous activities that are required of military personnel. The other private medical letter stated the Veteran received back treatment in December 2003, and that the strenuous physical activity that is often part of military training may have been a causative factor in his low back pain. Additionally, the Board notes that the Veteran was diagnosed with the lumbar spine strain and lumbar scoliosis within days of leaving active duty in July 2009. In this regard, the Board notes that the Veteran is presumed sound on entrance to service, except as to any defect or disability identified on clinical examination at that time. 38 C.F.R. § 3.304(b) (2012). The close temporal proximity between the Veteran's separation from service and when he was diagnosed with the lumbar spine strain and lumbar scoliosis also weighs in favor of a finding of service-connection and supports the Veteran's statements of experiencing back pain during service. Here, the Board finds the Veteran's statements as to the onset of his back pain to be credible and his statements are accorded significant evidentiary weight. Moreover, the July 2009 VA examination report lacks a nexus opinion as to either lumbar spine diagnosis, and the December 2009 VA examination report has factual inaccuracies. The December 2009 examiner only notes active service in July of 2008 and fails to note the Veteran's service from July 1991 to April 1995, which was when the Veteran testified, in September 2011, that the back pain began. Thus, the December 2009 VA medical opinion is of little evidentiary value because the probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that the Veteran is both competent and credible to report back pain in service and since service. At the least, this evidence raises reasonable doubt as to whether the Veteran's lumbar spine strain and lumbar scoliosis are etiologically related to carrying heavy loads in service. When resolving all doubt in the Veteran's favor, the Board finds that lumbar spine strain and lumbar scoliosis are etiologically related to service. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Thus, the Board concludes that service connection for lumbar spine strain and lumbar scoliosis is warranted. ORDER Entitlement to service connection for lumbar spine strain and lumbar scoliosis is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals . Department of Veterans Affairs