Citation Nr: 1330066 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 07-02 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. N. Hyland, Senior Counsel INTRODUCTION The Veteran served on active duty from July 1969 to July 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified at a Board hearing at the RO in May 2009. A transcript of that hearing is associated with the claims file. The case was previously before the Board and was remanded in August 2009 and November 2011. FINDING OF FACT The Veteran's current low back disability, diagnosed as degenerative disk disease of the lumbar spine, is related to his active duty military service. CONCLUSION OF LAW The criteria to establish entitlement to service connection for a low back disability, diagnosed as degenerative disk disease of the lumbar spine, are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudicating this claim because of the favorable decision. Any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's grant of the benefit sought on appeal. II. Service Connection Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran's current VA treatment records repeatedly reference back pain and include a diagnosis of early degenerative disc disease (DDD). See May 2012 and January 2011 VA treatment records. A May 2013 VHA opinion confirms that the Veteran currently has a diagnosis of DDD. Thus, there is medical evidence of a current disability. An in-service January 1971 examination report reflects that the Veteran was found to have an abnormal spine on clinical examination. The report includes a notation of pain in the low back with exercise since basic training, characterized as muscle sprain. Thus, there is medical evidence of in-service incurrence of an injury. The salient question is whether the current disability is related to the Veteran's active duty service, to include the noted muscle sprain and low back pain. The Veteran essentially contends that he has experienced back pain since his active duty service. There are several medical opinions of record which address the etiology of the Veteran's current lumbar spine disability. A December 2011 VA examination report reflects that the Veteran was diagnosed with early DDD of the lumbar spine, as confirmed by magnetic resonance imaging (MRI). The examiner's opinion was that the Veteran's back complaints were not at least as likely as not related to service. The examiner's rationale was that the Veteran's examination was essentially within normal limits, he had no history of treatment for the low back immediately following service, and subsequent to service, he drove a truck for many years. The examiner opined that the Veteran's present back complaints were more likely due to the truck driving. The Board finds this medical opinion to be inadequate because the examiner did not consider the Veteran's in-service records showing complaints of back pain in forming his etiology opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding a medical examination inadequate where the examiner "impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service"). Because the December 2011 VA examiner's etiology opinion was inadequate, the Board sought an expert medical opinion from a Veterans Health Administration (VHA) physician in February 2013. In an April 2013 letter, S.D. a VHA neurosurgeon, noted that x-ray images of the Veteran's spine in 2007 were normal. The physician opined that "if there was significant...DDD there would have been changes noted even on plain films, especially thirty-six years later." He opined that it was not as likely as not that the Veteran's lumbar back is related to his in-service shrapnel injury as that would not cause DDD and because shrapnel was not noted on the discharge examination report. At the request of the Board, the physician submitted an addendum dated in May 2013, clarifying that the Veteran has a current diagnosis of DDD and opining that there was not a "greater than 50 %" chance that this diagnosis was related to the Veteran's service. The Board found this medical opinion inadequate for two reasons. First, the physician appeared to have misunderstood the requirements for establishing service connection by his use of the term "significant" in the opinion. Service connection in this case does not require the Veteran to have "significant" DDD to establish a current disability - he simply must have a valid diagnosis. Second, the physician also appears to have applied a higher standard of proof than is permissible in service connection cases. Generally speaking, in order to prevail on a service connection claim, the Veteran need only show that it is "at least as likely as not", or a probability of 50 percent or higher, that the claimed disability is related to service. See 38 U.S.C.A. § 5107. In this case, however, the physician stated that there was not "a greater than 50%" (emphasis added) chance that the disability was related to service. In light of these inadequacies, the Board sought a third medical opinion in June 2013. The Board received a response from M.B., M.D. in July 2013. The opinion from M.B. states that it is at least as likely as not that the Veteran's current DDD is related to his active duty service. The physician's rationale was that the Veteran was treated in service for back problems, had a history of ongoing back problems from the time of service until his last examination, and has a clear diagnosis of DDD. The physician also explained that there is no evidence of any other causes for the Veteran's low back pain. The Board finds this medical opinion to be adequate because it is based on a factually accurate history of the Veteran's medical condition and is supported by a clear rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion ... that contributes probative value to a medical opinion."). As the December 2011 and April and May 2013 medical opinions are inadequate, they are not probative evidence. The only medical opinion of record that constitutes probative evidence is the July 2013 medical opinion which weighs in favor of the Veteran's claim. Accordingly, entitlement to service connection for a low back disability is warranted. ORDER Entitlement to service connection for a low back disability, diagnosed as degenerative disk disease of the lumbar spine, is granted. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs