Citation Nr: 1332574 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-23 666 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a low back disability. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from July 1988 to November 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified before the undersigned at a March 2013 Travel Board hearing. The hearing transcript is of record. The Veteran submitted additional pertinent evidence in March 2013, which has not yet been considered by the RO. However, the Veteran submitted a waiver of initial RO consideration of that evidence. 38 C.F.R. § 20.1304 (2012). FINDING OF FACT A current low back disability, namely arthritis of the lumbar spine, is the result of an injury during active duty. CONCLUSION OF LAW Arthritis of the lumbar spine was incurred in active military service. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claim for service connection for a low back disability. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.303(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 2013). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran contends that his currently demonstrated low back disability is related to his active military service. Specifically, he claims that he injured his back in October 1989, during active duty, and that he has continued to experience worsening symptomatology related to the back injury, including pain, stiffness, weakness, and difficulty sitting and bending, since the initial injury in service. The Veteran reported that although he did not seek medical treatment for his back after service, he self-medicated with over the counter pain remedies since his discharge in 1992. The Veteran's wife and brother have also submitted statements, indicating that the Veteran informed them that he injured his back during active duty in Germany, and that they have witnessed him experience low back pain since his discharge from the military in 1991. They both also reported that they had observed the Veteran self-medicating for his low back pain from the time of his discharge till the present. The Veteran's wife also reported that they had spent over $3,000 on a special therapeutic bed, special pillows and chiropractic massages to help alleviate his low back pain. Service treatment records show that the Veteran was seen on numerous occasions in 1989, for complaints of low back pain. He was diagnosed twice with a low back strain, and on one other occasion, he was diagnosed with mechanical low back pain. The back pain resolved and after 1989, there were no other complaints or diagnoses related to the back, and no chronic low back disability was diagnosed at the time of his discharge. The post-service medical evidence of record shows that the Veteran was treated in January 2013 for low back pain, which he reported he had experienced for 15 years. He was diagnosed with lumbar intervertebral disc displacement. Lumbar spine X-rays taken in February 2013 revealed straightening of the lumbar spine due to myospasm, osteophytosis noted in L5 and S1 vertebrae, reduced intervertebral disc space of L5-S1 level, and spina bifida occulta of S1 vertebra. The Veteran was afforded a VA examination in response to his claim in May 2009. He reported that he sustained a low back strain on two occasions during military service, due to lifting-type injuries, which were treated conservatively, with resolution. He also reported that since his in-service back injuries, he had experienced low back pain and occasional stiffness in the back area, with no radiation to the lower extremities. He also indicated that he had not received treatment from a physician for the condition and that he was not taking prescribed medication, but that he would take an occasional Ibuprofen. X-rays showed narrowing of L5-S1 disc space with osteoarthritis, and the examiner diagnosed lumbosacral arthritis. The examiner opined that it is less likely than not that the Veteran's current low back complaint is related to his in-service treatment. His rationale was that almost 21 years had passed from the time of the injury, and the Veteran had not sought medical attention within that time period. The Veteran's private physician, D.S., submitted a statement in February 2013, in which he noted that after reviewing the treatment records, it is his opinion that it is at least as likely and a greater than 50 percent probability that the Veteran's current back disorder is related to his in-service back injury. He noted further that it is likely that the Veteran sustained a traumatic injury to the lumbar spine for which he now has a lumbar strain and or chronic arthritis. The medical evidence documents a current low back disability. The service treatment records document an in-service back injury. The Board also notes that the Veteran has reported in statements and during examination that he has had low back pain since service. In addition, his wife and brother have reported in statements that they were aware that the Veteran had injured his back in service and that he has experienced continuous low back pain since his discharge. These statements provide competent evidence of a low back injury during active duty and a continuity of symptoms since. They provide a sufficient basis for establishing service connection. Davidson, Jandreau, Barr. They are buttressed by the opinion of Dr. D.S. He is competent to report the specifics of his injury, and his report is supported by the findings that he has a current low back disability. There is evidence against the claim, inasmuch as the contemporaneous record does not document a low back disability for many years after service. Furthermore, the May 2009 VA examiner opined that it was not likely that the Veteran's diagnosed lumbosacral arthritis is related to his in-service injury. However, the Board notes that it may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board also notes that there is no evidence of any intercurrent post-service back injury. In light of the above discussion, the Board finds no adequate basis to reject the competent medical evidence that is favorable to the Veteran, based on a rational lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). This favorable medical evidence supports a finding that the Veteran's currently diagnosed lumbar spine arthritis is the result of an in-service low back injury. Overall, the Board finds that the evidence is in at least equipoise. Resolving reasonable doubt in the appellant's favor, service connection for arthritis of the lumbar spine is warranted. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for arthritis of the lumbar spine is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs