Citation Nr: 1330376 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 09-42 335A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a chronic low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, his spouse Mrs. A.C., and his friend Mr. R.H. ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from June 1983 to August 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's claim of entitlement to service connection for a chronic low back disability. In May 2013, the Veteran, accompanied by his representative and his testifying witnesses, Mrs. A.C. (his spouse) and Mr. R.H. (his friend), appeared at the RO to present evidence and oral testimony in support of his back disability claim before the undersigned traveling Veterans Law Judge. A transcript of this hearing has been obtained and associated with the Veteran's claims file for the Board's review and consideration. FINDINGS OF FACT 1. The Veteran and his witnesses have presented credible testimony of onset of his chronic low back symptoms during his active service in the United States Air Force with continuity of the same symptoms thereafter. 2. Resolving all doubt in the Veteran's favor, a chronic low back disability, now diagnosed as lumbosacral disc disease with left-sided sciatica, had its onset during his active military service. CONCLUSION OF LAW Lumbosacral disc disease with left-sided sciatica was incurred in active duty. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's claim of entitlement to service connection for a chronic low back disability is being granted in full. Therefore, the Board finds that any error related to VA's duties to notify and assist under the Veterans Claims Assistance of Act of 2000 (Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) with regard to the claim is rendered moot by this fully favorable decision. Service connection basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. This may be accomplished by affirmatively showing inception during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (2013). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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). Although the Veteran's service treatment records do not show diagnosis or treatment for low back complaints, he and his witnesses, including his spouse, his father, and his friends and fellow servicemen who have all known him personally during his period of active duty, have presented credible testimony indicating onset of persistent low back pain beginning in service in approximately 1992, with continuity of persistent low back pain thereafter. The Veteran's service personnel records show that he served for over 20 years in the United States Air Force, during which time he served in supply management from 1986 to 2000. His duties involved moving inventory in a warehouse, which is consistent with his testimony that he constantly performed lifting of heavy equipment in service and sustained a straining injury to his low back as a result, particularly while manually moving heavy security safes in 1992 while stationed in Saudi Arabia. Copies of contemporaneous personal letters to his wife, in which he related his involvement in this activity as well as the credible statements of his witnesses corroborate and support his account. The Veteran also reported sustaining an additional straining injury to his lower back when he loaded and handled heavy sandbags to divert floodwaters during heavy flooding in November 1994, while he was stationed at Incirlik Air Force Base in Turkey. This account is corroborated by credible statements from his witnesses and documents contained in his personnel records. Recognition is given to the report of an August 2003 VA examination conducted during the Veteran's final month of active duty, which indicates that the Veteran's spine was normal and that he denied having any low back problems. The Veteran explained that the absence of documented back pain complaints in his service medical records was because of he did not report his self-treatment of his low back pain with non-prescription medications. He stated that his reluctance to document his back problems or to report having back problems at the August 2003 examination was because he wanted to avoid having clinical documentation of his chronic back problems in service, which could result in the loss of his worldwide military deployment status due to a medical disability. He furthermore did not want to have documentation of a chronic medical problem that could potentially jeopardize his desirable posting as an Air Force satellite control technician, which was a duty that he held for approximately the last three years of his active military service before retiring in late August 2003. The Veteran's post-service private medical records show that the earliest clinical documentation of a low back disorder was a treatment note for sciatica in May 2005, nearly two years after his separation from service. Thereafter, VA and private medical records dated from 2005 to 2012 show that he received regular treatment (including steroid injection therapy) for chronic low back pain associated with an overarching diagnosis of lumbosacral disc disease with left-sided sciatica. The clinical evidence includes the report of an April 2008 VA medical examination, in which the examining physician reviewed the Veteran's claims file, noted his account of onset of chronic and recurrent low back pain following straining injuries relating to his specific military duties in service, and opined that it was as likely as not that his lumbar spine disability was related to physical stress and injuries sustained during active service. Concurring opinions were presented by the Veteran's private physician, Dexter D. Koons, M.D., in February 2012. Dr. Koons also stated that he reviewed the Veteran's post-service medical records reflecting left-sided sciatica in May 2005 and February 2006 X-ray study confirming the presence of lumbar disc degeneration. Based on this review, Dr. Koons concluded that it was more likely than not that the progress of the Veteran's chronic degenerative disc disease and sciatica took longer to mature than the 21-month gap between his discharge from service in August 2003 and his earliest documented account of sciatica in May 2005. As such, Dr. Koons opined that the Veteran's lumbosacral disc disease with left-sided sciatica "more than likely occurred while the veteran was [on] active duty." Notwithstanding the absence of clinical documentation of a chronic low back disability in service, the credible testimonial evidence of the Veteran and his witnesses (who are competent to report such observable signs of a chronic low back disorder as his persistent subjective complaints of low back pain) and the opinion of a VA physician who examined the Veteran in April 2008 and the opinion of the Veteran's private treating physician in February 2010 all support a finding that his chronic low back disability had its onset in service. Thus, as the evidence is in relative equipoise regarding time of onset of his low back disability, the appellant will be afforded the benefit of the doubt. His claim for VA compensation for lumbosacral disc disease with left-sided sciatica is therefore granted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for lumbosacral disc disease with left-sided sciatica is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs