Citation Nr: 1331794 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 10-31 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran had active service from July 1944 to June 1946. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision issued in July 2009 by the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned at the RO in June 2013. A transcript of the hearing is of record. In July 2013, the Board remanded this matter for further development and readjudication. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder ." 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 A low back disorder is as likely as not causally related to the Veteran's active service. CONCLUSION OF LAW A low back disorder was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This is so because the Board is taking action favorable to the Veteran by granting the claim of entitlement to service connection for a low back disorder at hand. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). Service connection may be granted for any disease initially diagnosed after service, 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). Service connection for certain chronic disabilities, including arthritis, may be granted on a presumptive basis if manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). Service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). 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) (West 2002 & Supp. 2012). 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 (2013). 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. Factual Background and Analysis In multiple written statements of record as well as during his June 2013 Board hearing, the Veteran contended that he has suffered from severe back strain since service. He acknowledged that he never sought treatment for back pain/strain during service but was sometimes put on light duty. The Veteran reported lifting large amounts of heavy supplies, equipment, and munitions during service. Service treatment records currently contained in the claims file did not reveal any complaints, treatment, or findings for any low back disorder; rather, there were normal musculoskeletal findings. The Veteran's DD Form 214 revealed that his military occupational specialty (MOS) was Truck Driver. Additional service personnel records showed that the Veteran's principal duties as a light truck driver included transporting military personnel and equipment as well as making minor repairs. Post-service VA treatment notes dated from August to November 2009 reflected complaints of chronic low back pain and physical examination findings including lordosis, tenderness on palpation of the paraspinous muscles, and positive raising leg testing on both sides. A VA X-ray reports of the lumbar spine dated in September and November 2009 revealed osteophytosis of the endplates of L2-L5; considerable posterior narrowing of the disc space between L4 and L5; disc space between L5 and S1 that appeared to be obliterated and evidently secondary to old, chronic disc disease; hypertrophic changes of the apophyseal facet joints between the levels of L4 and S1; and anterior slippage of the L5 on S1 with pars defect. In the September 2009 X-ray report, the examiner listed an impression of discogenic disease at the L4/L5 level, Grade 1 spondylolisthesis of L5, and probable associated foraminal stenoses. A December 2009 private treatment note from G. W. I., M. D. showed a notation of lumbar disc disease. Additional VA treatment records dated in October 2011 showed complaints of discomfort with back and joint pains. In May 2012 and March 2013 statements, the Veteran's primary private physician, A. B. N., M. D., noted his review of the Veteran's medical history. After reviewing MRI reports and X-rays, the physician indicated that he felt that the back condition the Veteran suffers from was a representation of a spine injury from decades ago. It was noted that the Veteran served during World War II in Germany as a supply technician and was responsible for delivering various supplies to unit areas, to include but not limited to water, food, ammunition, fuel, etc. The physician commented that the Veteran on many occasions was engaged by the enemy in fire fights and the actions required would have included twisting, turning, and diving to seek cover for protection. The physician opined that the Veteran's claimed low back condition was at least as likely as not the result of his active military service due to the extreme trauma caused on the lower portion of the body when lifting excessive amounts of supplies. He concluded that all the strain placed on the lower portion of the Veteran's back would have contributed to his current back condition today. It was further noted that the physician did not feel that any civilian hobbies or employment that the Veteran had participated in over the years would sustain, support, or contribute to his current condition. In an August 2013 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) examination report, the examiner diagnosed discogenic disease at the L4-L5. The Veteran reported that he started having low back pain in service in 1944 because of doing a lot of heavy lifting. He noted that he started seeing doctors about it several years ago and has pain in the low back all the time, taking over-the-counter medications but not using any assistive devices. After reviewing the record and examining the Veteran, the examiner, a VA physician, opined that any back condition (including discogenic disease at the L4/L5) the Veteran currently has was less likely as not (less than 50/50 probability) to have been caused by his period of active service. In his cited rationale, the examiner highlighted that there was no evidence of chronic low back condition in the service and that the Veteran left service in 1946 more than 65 years ago. The examiner further noted that lifting heavy objects 65 years ago in service for period of two years was not equal by itself to having back disability 65 years later, which could have resulted from aging or whatever has happened in the last 65 years. In view of the totality of the evidence, including the findings of a currently diagnosed low back disorder, the Veteran's competent statements of in-service heavy lifting and back pain as well as his in-service principal duties, the favorable May 2012 and March 2013 medical opinions from the Veteran's private physician, and the negative medical opinion from the August 2013 VA examiner, the Board finds the evidence is in relative equipoise that Veteran's low back disorder is casually related to his military service. Based on the foregoing and resolving all doubt in the Veteran's favor, the Board finds that entitlement to service connection for a low back disorder is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a low back disorder is granted. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs