Citation Nr: 1332420 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 07-32 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran and a friend ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Army from January 1968 to December 1969. The matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Des Moines, Iowa. This case was previously before the Board. In a November 2011 decision, the Board denied entitlement to service connection for a low back disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claim (Court). In December 2012, the Court granted a Joint Motion of the Parties and the Board remanded the case in April 2013 for action consistent with the Joint Motion. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). In April 2009 the Veteran testified before a Decision Review Officer (DRO). The Veteran testified before the undersigned in June 2013. Transcripts of both hearings are associated with the claims file. In September 2011, the Veteran changed representatives in the current claim from Veterans of Foreign Wars of the United Stated (VFW) to Vietnam Veterans of America (VVA). An Appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22) for the VVA is of record. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals the June 2013 Board hearing transcript. The other documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his low back disability is related to his active service. CONCLUSION OF LAW A low back disability was incurred during active military service. 38 U.S.C.A. §§ 5107(b), 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In light of the favorable determination being reached, the Board finds that no further discussion of VCAA compliance is necessary as any error that was committed as to either the duties to notify or assist is harmless. Analysis The Veteran contends that he injured his back when a fellow service man fell on him as they both dove into a bunker during an enemy attack at Camp Evans in Vietnam. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). In order to establish service connection for a claimed disorder, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for arthritis may also be established by evidence showing chronicity and a continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The provisions of 38 C.F.R. § 3.303(b) provide that with chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Medical records establish that the Veteran has a current low back disorder. Post-service private treatment records dated January 1998 to June 1999 show that the Veteran was diagnosed with degenerative lumbar intervertebral disc disease, degenerative disc disease, and a lumbar strain. Private records dated September 2001 to September 2005 show that the Veteran underwent a lumbar laminectomy in June 2001. There is also evidence suggesting an in-service incurrence of a low back injury. The Veteran reported that during an attack in Vietnam he dove into a bunker and a fellow serviceman, F.E., fell on top of him and injured his back. In March 2007 the Veteran submitted a buddy statement from F.E. F.E. reported that the Veteran seemed to remember him falling on top of him one night while entering the bunker and the Veteran believes this may be the reason for some of his back problems. F.E. stated that this was some 38 years ago and he cannot say for sure whether he did or did not fall on him but it was a great possibility that he did. F.E. reported that he was a good sized fellow so he is sure the Veteran can remember much better than he can. F.E. also stated that from what he could remember of the Veteran, he was a truthful, "straight-up fellow" and that if he remembers it that way, than most likely "that's just the way it was". In March 2007 the Veteran submitted another buddy statement from another fellow serviceman B.E. B.E. reported that one night in February 1969; ten rockets came into their compound at Camp Evans in Vietnam. B.E. reported that he was asleep when the attack occurred. He reported that when he ran to the bunker near their barracks he discovered that the Veteran had injured his back after F.E. had jumped on top of the Veteran. The Board notes that the Veteran and his fellow service members are competent to attest to factual matters of which they have first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board recognizes that the Veteran's service treatment records are negative for any complaints or findings of a back condition. However, the Board notes that the mere absence of corroborating contemporaneous medical evidence does not render the statements incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2008). As there is no evidence of record that directly contradicts the assertions of the Veteran and his fellow servicemen the Board finds these contentions to be competent and credible and therefore, affords these assertions probative weight. As such, the only issue left to be determined is whether the in-service injury is related to the Veteran's current low back disability. In March 2007 the Veteran submitted a statement from his ex-wife. The Veteran's ex-wife reported that the Veteran was drafted into the Army a few months after they were married. She reported that she does not remember the Veteran having any back problems prior to his tour of duty. She also reported that when the Veteran returned, he experienced headaches, neck, and back pain. She also stated that the Veteran was treated by a chiropractor on a regular basis. In March 2007 the Veteran also submitted a statement from his sister. The Veteran's sister reported that the Veteran never had any back problems prior to going into the service. She reported that he had back problems and is constantly in pain since he was in the service. The Veteran was afforded a VA examination in February 2008. On physical examination the VA examiner found degenerative changes. The examiner opined that the Veteran's back condition was not caused by or a result of service. The VA examiner reasoned that the Veteran responded in the negative with regards to back problems at separation and he was able to engage in physical strenuous activity after his discharge from the service as noted in the records review. The VA examiner stated there were no records, except those generated after the Veteran filed his claim, detailing the incident in the bunker. She also stated that the Veteran had failed to make available to her all the records from the late 1990s to the early 2000s in order to investigate the claim more thoroughly. The VA examiner also stated that her opinion may or may not change after review of these outstanding records from the information that was available at the time. In April 2009 the Veteran submitted another statement from his ex-wife. The Veteran's ex-wife reported that Dr. F was the Veteran's family physician before he entered service as well as after he was discharged. She stated that Dr. F treated the Veteran for back complaints and adjusted the Veteran until roughly 1974, when the Veteran started going to a chiropractor. The Veteran testified before a DRO in April 2009. The Veteran reported that he was seen by Dr. B for a short period of time after service. In April 2009 the Veteran submitted a letter from Dr. B, a private physician. Dr. B reported that the Veteran was a past patient of his during the late 1970s and early 1980s. Dr. B stated that he was unsure of the exact start date and end date of care due to the fact that the Veteran's records had been destroyed. Dr. B explained that his office keeps records on inactive patients for a period of ten years. Dr. B stated that he remembered treating the Veteran for a lower back condition but because of not having the records he was unable to reference the specific levels of pain, duration, and cause of his condition. In January 2010 the Veteran submitted a letter from Dr. S, a private physician. Dr. S stated that he received a request from the Veteran and the Board of Veterans Appeals in regards to the Veteran's back pain. Dr. S stated that the letters from the chiropractor that treated the Veteran in the past and the letter from the Veteran's ex-wife were not available for review, other than what was mentioned about them in the appeal description. Dr. S opined that it would be possible that the Veteran's chronic back pain had its origin in the service; however, to say that was the case for sure he would be unable to determine. In a May 2010 VA addendum the VA examiner stated that she was unable to change her previously rendered opinion because the buddy statements were very weak, Dr. B's statements contradict the statements by the Veteran during his hearing, the statements in support of the claim vary from getting injured from jumping into the bunker, both knees, left knee, and later a large man falling on him, and a PCP note claiming the Veteran's neck was injured from the same incident. In May 2011 the Veteran submitted a clarification opinion from Dr. S. Dr. S stated that the Veteran brought in two letters from soldiers who were in his unit addressing the issue of his back injury. Dr. S opined that it was as least as likely as not that the Veteran's chronic back pain began during active service. In a May 2011 VA addendum the VA examiner stated that the opinion provided by Dr. S appeared to be based on the Veteran's report alone whereas her report was based on review of all the available evidence, including the actual STRs. The examiner opined that the Veteran's back condition was not caused by his military service. She reasoned that the Veteran and his buddies present varying statements concerning the alleged mechanism of the injury, there are no medical records supporting his claim of ongoing back problems since the alleged injury in the bunker, and the medical records indicated the back problems were of short duration and acute onset in 1998. During the June 2013 Board hearing, the Veteran testified that he went to Dr. P immediately after getting home from service. The Board notes that while the hearing transcript refers to the physician as Dr. P, the Veteran's wife has referred to the physician as Dr. F. The Board finds that they are one in the same as the only difference in the names is the first letter. The Veteran and his representative reported that he went to Dr. P for approximately six years before Dr. P passed away. The Veteran reported that he then went to Dr. B for approximately ten years. The Veteran reported he went to Dr. MA for about eight to nine years, to Dr. SI for six or seven years, Dr. MC for two years, and then the VA for the past eight years. The Veteran also reported that before Dr. S rendered his opinion about the Veteran's back, the Veteran went over his entire back history. The record contains favorable and unfavorable competent and credible medical opinion evidence on the question of whether the Veteran's low back disability is etiologically related to service. The Board also notes that there is evidence of continuity of symptomatology as the Veteran and his ex-wife have asserted that the Veteran has been treated for his low back pain since service and very significantly, Dr. B reported treating the Veteran beginning in the late 1970s. Again, the Veteran and his ex-wife are competent to report on issues of which they have firsthand knowledge and as there is no evidence of record that directly contradicts these contentions, the Board finds them to be competent and credible and therefore, affords these assertions probative weight. As such, the Board concludes that in this case, as it now stands, the evidence of record is at least in relative equipoise as to whether the Veteran's low back disability is related to active service. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). As such, service connection for a low back disability is warranted. ORDER Entitlement to service connection for a low back disability is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs