Citation Nr: 1330502 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 09-35 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for degenerative arthritis of the back, claimed as residuals of a back injury, to include as secondary to his service-connected disabilities of residuals of wounds to the right and left leg. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from October 1949 to May 1954 and from January 1968 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the RO. In August 2010, June 2012, and April 2013, the issue was remanded for further development. In June 2010, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran's back disability is causally related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability have been approximated. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Merits of the Claim Although the Veteran has previously argued that his back disorder was caused by an altered gait secondary to service-connected lower extremity disorders, he has recently argued that when he entered active Naval service in January 1968, he had a pre-existing back disorder that was the worsened - resulting in his discharge in June 1968essentially asserts in part, that he was not hurt during his service in the Navy (his second period of active duty). The Veteran's service treatment records (STRS) are presumed to have been largely destroyed in a 1973 fire at the National Personnel Records Center. Available STRs reflect a June 1951 x-ray study of the thoracic spine (from the first period of active duty) that revealed "slipping of the spurs of the bodies of all the thoracic vertebrae," posteriorly. The Veteran has submitted several letters from service colleagues, who essentially relate that the Veteran served in combat and on at least one occasion during this service, he carried a fellow soldier on his back when the soldier had been wounded. A June 1968 duty restriction (from the second period of active duty), reflects that the Veteran was to be followed for back and leg trouble. The Veteran was discharged from service later that month due to these disabilities. Post-service records reflect VA treatment records dated in the 1990s, years prior to the filing of this claim, which include the Veteran's reports of an in-service back injury occurring in Korea. In a September 2007 VA examination, the Veteran reported that his initial onset of back pain was in 1951 from a jeep accident during service. The Veteran was diagnosed with residual fracture of the right tibia fibula. The examiner did not provide an opinion as to etiology. An August 2010 VA examination report includes the Veteran's report of sustaining a right leg fracture during his 1953 Jeep accident. He added that, in 1956, his right leg gave out and he sustained a new fracture which required surgery. The VA examiner stated that, as a result of the injuries sustained to the right lower extremity (the accident in 1953 and the giving way requiring surgery in 1956) the Veteran had shortening of the right lower extremity. The examiner diagnosed the Veteran's back disability as lumbar disc degeneration and opined that there was nothing he could date back to the Veteran's military service. While the examiner observed that the Veteran's low back problems were related to aging and not to any accidents or incidents in service, the examiner did not discuss or apparently consider: (1) an in-service x-ray report of the Veteran's thoracic spine, dated June 1951, which shows slipping of the spurs of the bodies of all thoracic vertebrae; (2) STRs dated June 1968, confirming back problems; (3) the Veteran's reports of lay-observable in-service and post-service back symptoms; and (4) VA treatment records dated in the 1990s, years prior to the filing of this claim, which include the Veteran's reports of an in-service back injury occurring in Korea. The Veteran underwent another VA examination in September 2012. The examiner stated that the Veteran had been diagnosed with lumbar degenerative disc disease. He noted that the Veteran reported an injury to the low back in service in the 1950s which was treated as a sprain. The Veteran indicated that his pain had never resolved and he described current constant pain in the low back and radicular pain in the legs. He denied interval injury. The examiner commented that the radiographic report from service was of limited value without being able to see the film and its finding was insignificant. He concluded by noting that the abnormality in that study was in the thoracic spine, which had never been symptomatic. However, this examination is also inadequate because the VA examiner did not provide an opinion as to whether the Veteran's back disorder pre-existed his second period of service and then increased in severity. In a May 2013 VA examination addendum, the VA examiner stated that he was unable to find objective evidence that the Veteran's back disorder existed prior to his second period of active service or that it increased during service. He further stated that his back condition was not caused or aggravated by his service-connected residuals of his right leg, including shortening of his leg. The examiner explanation was that "[h]is only residual objectively is a minor abrasion." The examiner's explanation is flawed in that he did not consider the left leg and the right leg's shortening and muscle atrophy. Analysis: The Veteran plainly served in combat. His account of what occurred in combat service (i.e., engaging in a body carry during combat operations) must be presumed credible under the operation of law. 38 U.S.C.A. § 1154(b). The law also provides that where the service medical records are incomplete or presumed destroyed, VA not only has a heightened obligation to explain its findings and conclusions, but that it also has a heightened duty to consider the benefit-of-the-doubt rule. Dixon v. Derwinski, 3 Vet.App. 261 (1992); O'Hare v. Derwinski, 1 Vet.App. 365 (1991). The Veteran's condition of physical soundness at the time he entered Naval service several years later is unknown. A veteran is presumed to be in sound condition when entering into military service except for conditions noted on the entrance examination or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto, and that the disease or injury was not aggravated by service. 38 U.S.C.A. § 1111 ; 38 C.F.R. § 3.304(b) ; Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (2003). The burden is on VA to rebut the presumption soundness, by clear and unmistakable evidence, both that the disorder at issue pre-existed service, and that it was not aggravated by service. See VAOPGCPREC 3-2003 (July 2003); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Because there is no evidence to show that the Veteran was, or was not in sound physical condition at the time he entered his second period of active service with the U.S. Navy, the Board will accord the Veteran the benefit of the doubt. In summary, the case presents (1) a documented combat veteran who alleges and has provided substantiation for one or more in-combat relevant service incidents involving the back; (2) uncertainty through a lack of records as to his physical condition at the time roughly contemporaneous with a 1951 radiograph showing a back abnormality and whether symptoms were present prior to discharge; (3) uncertainty through a lack of records whether the Veteran was in sound physical condition when entering active Naval service in January 1968; (4) discharge apparently because of back symptoms, and; (5) relevant, competent, and largely unrebutted lay evidence. The Board concludes that a back disability was incurred in service, and service connection is warranted. The benefit-of-the-doubt rule, 38 U.S.C.A. § 5107(b), has been applied in reaching this decision. ORDER Service connection for degenerative arthritis of the back is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs