Citation Nr: 1332737 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 11-00 092A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Kenneth S. Beskin, Attorney ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to February 1977, and in the Reserves from September 1977 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has reviewed the Veteran's claims files as well as the record maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). The issue of entitlement to service connection for decreased kidney function has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See correspondence from the Veteran's attorney, Kenneth S. Beskin, received by the RO on April 23, 2013. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 The weight of the competent and credible evidence is at least in relative equipoise on the question of whether the Veteran's currently diagnosed multilevel degenerative disc disease is related to a documented low back injury in service. CONCLUSION OF LAW Multilevel degenerative disc disease was incurred or a result of active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has satisfied its duty to assist and notify the Veteran in apprising him as to the evidence needed to substantiate, and in obtaining evidence pertinent to, his claim for service connection for a low back disability. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). Indeed, to extent that there is any defect in VA's duty to assist and notify, the Board finds that such is non-prejudicial in light of the fact that the benefit sought on appeal is being granted in full. Law and Analysis The Veteran is seeking service connection for a low back disability that he contends began in service as a result of an injury after lifting wall lockers. He contends that shortly after service he continued to treat himself for constant back pain with over-the counter medications, icing, and stretching exercises. He indicated that he reinjured his back in 1991. See VA Form 21-4138, dated July 17, 2000 and correspondence from Veteran dated December 31, 2010. 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, 1131; 38 C.F.R. § 3.303(a). "To 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). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); arthritis and/or degenerative disc disease is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. Service connection is 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). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, 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 will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Board begins by noting that the evidence in support of the Veteran's claim consists of service treatment records, which contain uncontroverted evidence that beginning in January 1974 he was treated on several occasions for recurring back pain after lifting wall lockers. He was later hospitalized in April 1974 for left sciatica and afterwards placed on physical profile. At his separation physical in December 1976, the Veteran indicated that he had recently been on quarters for lumbar spasms and was previously hospitalized for the same injury. In the summary of defects and diagnoses section of the examination report, the examiner listed recurrent low back pain. At that time the Veteran was again placed on temporary physical profile for discogenic disease. In contrast, the evidence against the Veteran's claim consists of some evidence of several work-related injuries of unspecified impact. Post-service clinical records show he was initially treated for low back pain in 1979. At that time he was sent home by his supervisor and had limited lifting restrictions. In April 1983, he was treated for back injury after lifting a patient. The clinical assessment was musculoskeletal strain. It appears that beginning in November 1991, the Veteran began fairly regular treatment for chronic lower back and lower extremity pain after lifting several surgical trays. See VA Employee Health Records and VA Progress Notes dated from 1977 to 1991. In addition, a July 1992 medical opinion, obtained in connection with the Veteran's worker's compensation claim, attributed his low back disability to the November 1991 work-related injury, without mention of the Veteran's in-service injury. See Pain Clinic Note from Duke University Medical Center, dated July 30, 1992. During the course of this appeal, the Veteran submitted a medical opinion from his private treating physician who attributed his current low back disability to his in-service injury. The physician reported that his review of the Veteran's service records revealed several complaints of back pain in April 1974 and December 1976. Following service the Veteran did not begin treatment for his back again until the 1980s. The back pain has recurred over the years, usually brought on by episodes of lifting or heavy activity. The physician concluded that in looking at the totality of his complaints, it is clear that the Veteran has had back problems as far back as 1974 with the original injury in the military and that he has had chronic episodes of intermittent back pain ever since. See medical opinion from D.B. Musante, M.D. dated June 29, 2010. Unfortunately the private physician did not address the Veteran's 1991 work-related low back injury. Pursuant to the Board's November 2011 Remand, the Veteran underwent VA examination in August 2012. The examiner interviewed the Veteran and reviewed the claims file in its entirety, including service treatment records as well as post-service VA and private medical records. The Veteran's claimed in-service back injury was noted, and the examiner took a detailed history of post-service symptoms and complaints. The examiner noted that after service the Veteran was first seen in 1980 for back pain and that a myelogram in May 1992 showed degenerative disc disease of the lumbar spine. Current MRI findings confirmed mild to moderate multilevel degenerative disc disease throughout the lumbar spine. The examiner concluded the Veteran's low back condition (chronic pain with degenerative disc disease of the lumbar spine) was at least as likely as not (50/50 probability) due to and/or aggravated by his injuries sustained while on active duty. He explained that without better records from the 1970s and 1980s he could not give any other opinion. In determining whether service connection is warranted for disease or disability, VA must settle on whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The August 2012 VA opinion is both probative and persuasive as it is based upon a complete review of the Veteran's claims file and is supported by sufficient rationale. In rendering his opinion, the VA examiner considered the Veteran's self-reported history and belief that his current back disorder is the result of an in-service injury, the relevant history as contained in medical records from service onward, the results of his personal clinical evaluation, and discussed the Veteran's symptoms in the context of that history. Also, the VA opinion reflects access to the findings from the Veteran's private treating physician as well as lay statements of record. Because the VA examiner reviewed the entire claims file he was able to fully address the salient question as to the origin of the Veteran's back disability and its relationship military service. There is no adequate reason to reject the competent medical opinion of record that is favorable to the Veteran. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); Evans v. West, 12 Vet. App. 22, 26 (1998). Indeed, as discussed, the opinion from Dr. Musante further supports the finding that a correlation exists between the Veteran's documented in-service back problems and his current diagnosis of degenerative disc disease. Consequently, the Board resolves all benefit of the doubt in the Veteran's favor and grants service connection for degenerative disc disease of the lumbar spine with chronic pain. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for multilevel degenerative disc disease is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs