Citation Nr: 1332496 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-03 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran served on active duty from June 1983 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDING OF FACT The Veteran's currently diagnosed low back disability is the result of a disease or injury in active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C.A. §§ 1112(a), 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his current low back disability is due to injuries and treatment during active service. The decision herein to grant service connection for a low back disability constitutes a full grant of the benefit sought on appeal. Therefore, no further action is necessary to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence showing: (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. Principe, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In this case, the evidence clearly establishes a current low back disability. Current diagnoses include mild scoliosis or annular fissure; arthritis or degenerative joint disease; and degenerative disc disease of the lumbar spine. See February 2013 VA examination addendum (summarizing the current diagnoses); see also January 2008 VA treatment record; May 2008 VA examination report; September 2010 CT scan and October 2010 MRI conducted by VA providers; December 2012 VA examination opinion (noting that annular fissure is mild scoliosis). There is also evidence of injury and persistent, recurring low back pain since service. The Veteran has provided competent and credible reports back pain during active military service. Service treatment records document complaints of low back pain that began during the Veteran's military service. There are also statements from fellow servicemembers to corroborate the Veteran's reports of low back pain during service and treatment with a brace and physical therapy. Further, the Veteran describes persistent, off and on back pain since approximately 1984 (during active service). The Veteran's military occupational specialty during service was a medical specialist. Although the first post-service medical evidence is dated in 2008, the Veteran reported low back pain for 24 years at that time. See January 2008 VA treatment record. The Veteran is competent to report these lay observable symptoms during service and consistently since that time. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also finds him credible, as the statements are generally consistent with the available contemporaneous and recent medical evidence and the other lay evidence of record. There are several negative VA opinions of record, which generally indicate that the Veteran's current diagnoses of arthritis and degenerative disc disease are age-related, and not related to carrying gear or complaints during service. See May 2008 VA examination report; December 2012 VA opinion; February 2013 addendum. The February 2013 addendum report also noted that the current scoliosis was only minimal and had not progressed since service. Although these examiners acknowledged the Veteran's complaints of pain during service, it is not clear if they considered the Veteran's reports of continued pain since service, which the Board finds to be credible. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board sought opinions from an orthopedic spine surgeon through the Veterans Health Administration (VHA), with consideration of all pertinent lay and medical evidence and raised theories of service connection. In the initial July 2013 VHA report, the specialist opined that the Veteran's mild scoliosis was more likely than not a developmental defect, and that this defect more likely than not preexisted service and was not aggravated by service. A developmental defect is not a disease or injury for VA compensation purposes, and it generally may not be service-connected as a matter of law. 38 C.F.R. §§ 3.303, 3.306, 4.9. The specialist also opined that it was more likely than not that the Veteran had age-related degenerative disease, which was less likely than not related to the injuries or incidents in service. No rationale was provided for any of these opinions. The specialist added; however, that it was "possible" the Veteran's low back symptoms in service were the forerunners of age-related degenerative changes. In an August 2013 addendum, the specialist clarified that it was "at least as likely as not" that the symptoms during service were the forerunner of the Veteran's current degenerative changes. The specialist reasoned that the Veteran had consistent back complaints throughout service. Nevertheless, the evidence reflects additional current disabilities of degenerative joint disease (arthritis) and degenerative disc disease. As the VHA specialist opined that the current degenerative changes were at least as likely as not related to the consistent low back complaints since service, the benefit of the doubt doctrine applies. Resolving reasonable doubt in the Veteran's favor, and the evidence establishes a link to service. Therefore, service connection is warranted on a direct basis for the current low back disability. See 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for the current low back disability is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs