Citation Nr: 1330410 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 11-03 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from May 2007 to May 2008. He also served in the Army National Guard before and after his period of active duty, and his National Guard service included a period of active duty for training from August 1989 to December 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied the claims. The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in June 2011. A transcript is of record. Following his hearing, the Veteran submitted additional evidence directly to the Board, which was accompanied by a waiver of RO consideration. The evidence will therefore be considered in this decision. 38 C.F.R. § 20.1304 (2012). The record before the Board consists of paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The Board resolves reasonable doubt in the Veteran's favor by finding that his cervical spine disorder, diagnosed as cervical strain, is the result of injury to his cervical spine sustained during active duty. 2. The Board resolves reasonable doubt in the Veteran's favor by finding that his lumbar spine disorder, diagnosed as lumbar disc herniation, is the result of injury to his lumbar spine sustained during active duty. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disorder, diagnosed as cervical strain, have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for service connection for a lumbar spine disorder, diagnosed as lumbar disc herniation, have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants entitlement to service connection for disorders of the cervical and lumbar spine segments, which represents a complete grant of the benefits sought on appeal. See Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Thus, there is no need to discuss whether VA has complied with its duties to notify and assist found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran seeks service connection for disorders of the cervical and lumbar spine segments. He contends that he has problems with his neck as a result of wearing heavy flight equipment, to include a helmet and night vision goggles, while participating in helicopter flight training in the National Guard, but that he began noticing problems with his neck while stationed in Iraq. He contends that he began having problems with his low back while stationed in Iraq as a result of serving with a Medevac unit and having to load and unload patients out of the aircraft. The Veteran asserts that he has had continuous symptoms involving his cervical and lumbar spine segments since his deployment. See June 2011 hearing transcript. The Veteran's DD Form 214 indicates that he had over 17 years of service in the National Guard prior to his period of active duty during which he was deployed to Iraq. His DD Form 214 also reflects that he was stationed in Iraq for the entirety of his period of active duty and that he received both an aircraft and senior aircraft crewman badge. Service treatment records are devoid of reference to, complaint of, or treatment for, any neck/cervical spine problems or for treatment for any lumbar spine problems. Prior to his period of active duty, the Veteran consistently denied having recurrent back pain during periodic examinations. See reports of medical history dated January 1989, June 1993, October 1994, April 1995, June 1996, January 1997, January 1998, February 1998, November 1999, February 2001, February 2002, February 2003 and February 2004. He reported back pain that began during his deployment to Iraq on post-deployment health assessments dated in April 2008. The Veteran has consistently reported back and neck problems beginning during his period of active duty. See VA treatment records; November 2008 VA general medical examination report. The assertions made in relation to his back disorder are corroborated by the April 2008 post-deployment health assessments and several lay statements submitted by individuals who served with the Veteran in Iraq, each of whom report that the Veteran had problems with his back while stationed in Iraq but refused to go to sick call for treatment. One of the individuals reported working with the Veteran prior to Iraq and indicated that the Veteran never complained of problems with his back before their deployment. Three of the individuals report that the Veteran continued to have back problems after his deployment. See April 2011 VA Forms 21-4138 from J.M.T. and L.M.T.; June 2011 VA Forms 21-4138 from M.T.T. and D.V.O. The Board finds the lay assertions regarding back and neck problems beginning during the Veteran's period of active duty to be both competent and credible evidence of back and neck symptoms during that period. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran sought VA treatment for his neck and back within five months of his May 2008 discharge from active duty. He underwent VA general medical and spine examinations in November 2008, at which time he was diagnosed with lumbosacral skeletal muscle strain and cervical spine musculoskeletal strain. No opinion on etiology was provided. Since then, magnetic resonance imaging (MRI) of the Veteran's lumbar spine has shown disc herniation. See May 2009 record from American Health Network. The Veteran submitted temporary physical profiles dated in November 2009 and May 2011, both of which were related, in pertinent part, to problems with his back, to include the disc herniation. See DA Forms 3349. The Veteran submitted a letter from his private primary care provider, who reported that it was her opinion that his cervical neck strain and lumbar disc herniation are due to his years of training and over 1000 hours of flight time wearing his gear and helmet with night vision goggles, the constant vibrations inherent to helicopter operations, and his service in Iraq with a medevac company lifting patients on and off the helicopter. She also reports that the Veteran had no neck or back problems before his deployment. See June 2011 letter from Dr. L.K. The opinion provided by Dr. L.K. is accompanied by an adequate rationale, and appears to be based on the Veteran's competent and credible assertions discussed in more detail above. It is afforded high probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). As this is the only opinion of record, the Board resolves reasonable doubt in the Veteran's favor by finding that his cervical spine disorder, diagnosed as cervical strain, and his lumbar spine disorder, diagnosed as lumbar disc herniation, are the result of injury to his neck and back during period of active duty. Service connection is therefore warranted for both disorders. ORDER Service connection for a cervical spine disorder, diagnosed as cervical strain, is granted. Service connection for a lumbar spine disorder, diagnosed as lumbar disc herniation, is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs