Citation Nr: 1330751 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-42 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a low back disability. ATTORNEY FOR THE BOARD O. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1990 to November 2000. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine on behalf of the RO in Indianapolis, Indiana. Jurisdiction of this claim remains with the RO in Indianapolis, Indiana. FINDINGS OF FACT Resolving all doubt in the Veteran's favor, the Veteran's current low back disability is related to his military service. CONCLUSION OF LAW The criteria for service connection for a low back disability have been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist Upon its receipt of a claim for veterans' benefits, VA, under the Veteran's Claims Assistance Act of 2000 (VCAA), must: (1) notify the claimant of the information and evidence not of record necessary to substantiate the claim; and (2) assist the claimant in substantiating the claim. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). In this case, the Board is granting the Veteran's claim in full. Therefore, if VA committed any errors regarding its duties to notify or to assist, those errors were harmless and did not prejudice the Veteran. II. Merits of the Claim Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Generally, "[t]o establish a right to compensation for a present disability, a 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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In deciding the claim, the Board must consider all information and lay and medical evidence of record. The Board must provide reasons and bases to support its decision. However, the Board need not discuss every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance of positive and negative evidence, i.e., when the evidence is in a state of "equipoise," regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b) (West 2002 & Supp. 2012). The Veteran testified at an RO hearing that, for 10 years, his job in the service involved heavy lifting, including the lifting of boxes weighing between 50 and 200 pounds. The Veteran's service treatment records (STRs) reveal multiple complaints of chronic low back pain from 1996 to 1999 and medical entries indicating that he had suffered repeated lumbosacral strains. For example, an entry dated in September 1998 states that the Veteran "hurt his back moving a box laterally (> 100 lbs) ... mild lumbar sore pain." The Veteran underwent VA examination of his back in July 2009. The report of examination shows that the examiner reviewed the claims file, medical records, and interviewed the Veteran in conjunction with the physical examination. The Veteran reported a sense of numbness in the back and in the lower extremities when he lies on his stomach and arches his back to, for example, read in a prone position. He described two types of pain. One is constant pain at a level of 2/10. The other is a flare-up pain that occurs approximately twice a month at a level of 9-10/10 and lasts for the rest of the day. Radiographs of the lumbar spine demonstrated a narrowing of the L5-S1 disc space and osteophyte formation at that level. The following impression was noted: Degenerative spine disease L5-S1. As to the question of whether the Veteran's low back pain noted in the service was related to the current radiological findings, the examiner opined that the question could not be resolved with resorting to mere speculation. The Veteran underwent a second VA examination of his back in November 2010 to obtain a more definitive opinion. The report of examination shows that the examiner reviewed the claims file, medical records, and interviewed the Veteran in conjunction with the physical examination. The examiner noted that the Veteran had undergone an MRI of his lumbar spine. The November 2010 examiner reported that the MRI corroborated the findings of the lumbar spine X-rays showing L5-S1 disc disease and degenerative changes. This examiner also opined that he could not resolve the issue of nexus without resorting to mere speculation. The rationale provided for this opinion was similarly indecisive, which stated that the origins of the Veteran's current degenerative disease of the lumbar spine could have been from trauma in-service or sedentary pursuits, and is not atypical for the Veteran's age. The opinion concluded that based on the absence of an in-service MRI ". . . I do not know whether the current disc disease arose during or after his time in service. Given the substantial limitations in information, I cannot resolve this issue without resort to mere speculation." The Veteran contends that his low back symptomatology began during his military service and has continued to the present. The Board notes that the Veteran is competent to report his observations as to the nature and onset of his low back symptomatology and his active duty experiences. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds his statements to be credible, as his STRs confirm that he was treated for low back symptomatology on multiple occasions while on active duty. While it is true that the Veteran admitted that he did not have any medical evidence documenting complaints or treatment for the low back symptoms from the time of discharge until 2009, that is not enough in and of itself to decisively rebut credibility of the Veteran's contentions. The Veteran had a well-documented history of chronic low back pain and strain in service, so continued symptomatology post-service is reasonable to believe even in the absence of contemporaneous medical records. Neither of the examination reports discussed above mention that the of medical evidence post-service demonstrated that his current low back disability is unrelated to the in-service symptoms. Based on the medical and lay evidence of record, the Board finds that service connection has been established. Here, both VA examiners were emphatic that the issue of "nexus" could not be resolved without resorting to mere speculation. Moreover, the Veteran's competent and credible report as to the onset of his low back pain, as corroborated by his STRs, and the medical evidence showing disc disease and degenerative changes of the lumbar spine, lead the Board to conclude that the evidence is at least in equipoise as to whether his low back disability had its onset during service. When the evidence for and against the claim is in relative equipoise, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Accordingly, with resolution of doubt in the Veteran's favor, the Board concludes that a grant of service connection for a low back disability is warranted. The Board could order further development of this claim. However, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-07 (1994). ORDER Entitlement to service connection for a low back disability is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs