Citation Nr: 1332803 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 07-13 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a back disability, to include as secondary to the service-connected bilateral knee degenerative arthritis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from August 1978 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The issue has been recharacterized as it appears on the cover page of the instant decision. The claim was most recently before the Board in May 2013. The matter was remanded for further development and adjudicated; having been completed, the claim for a back disability is now ready for appellate disposition. The Board awarded service connection for a bilateral knee disability in May 2013. The RO implemented the award for bilateral knee degenerative arthritis in a May 2013 rating decision. As such, there no longer remains a claim in controversy. FINDING OF FACT A back disability, variously diagnosed as lumbar-sacral strain and degenerative changes of the lumbar spine, is due to heavy lifting as an artillery soldier during the Veteran's period of active military service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, the criteria for service connection for lumbar-sacral strain and degenerative changes of the lumbar spine have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran asserts that his current back disability is due in part to heavy lifting as an artillery soldier during his period of active military service. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Veteran's service-personnel records establish that he performed duties a gunner, cannoneer, cannon crewman, and assistant gunner. He received an air assault badge for successful completion of the standard air assault course for the period of service between May 4, 1982, and May 17, 1982. Post-service, the Veteran has been variously diagnosed with lumbar-sacral strain and degenerative changes of the lumbar spine. In a June 2013 addendum opinion, a VA examiner opined, "I do believe [the Veteran] did do heavy lifting as an artillery soldier (lifting ammo rounds etc) which would contribute [to] the degenerate arthritis of his spine and knees that all of us have as we age (become older). He further explained: "[b]ased on [the Veteran's] 8 years active duty in the Army compared to his age of 53 years I believe his active duty service contributed less than 20% to his low back pain (8yrs/53yrs = approx 15 percent total time of his life spent in Army)." He concluded, "[i]t is my professional opinion that his active duty service (8 years in the US Army with no combat deployments and 1 tour in Germany) contributed less than 50% for his low back pain." The Board is cognizant that there are contrary statements in the record from other VA examiners as to whether the Veteran's low back disability was related to service and/or a service-connected disability (namely bilateral knees); however, the Board found on multiple occasions that either the VA examination failed to provide an etiological opinion or was inadequate for rendering a decision on the merits of the Veteran's claim. The Board found that the May 2005 VA examiner did not provide an etiological opinion as to whether the Veteran's back disability was related to an in-service event or injury. See February 2009 Board Remand. The Board found that the April 2009 VA examination report contained insufficient information (the opinion did not provide a response as to whether the Veteran's back disability was in whole, or in part, due to the Veteran's air assault training, which has since been confirmed by the record). See October 2011 Board Remand. The Board found that the April 2009 and March 2012 VA examinations contained inconsistent diagnoses with respect to the Veteran's back (early degenerative arthritis of the lumbar spine in 2009 and lumbar-sacral strain in 2012). The Board further found that the March 2012 VA examination report failed to adequately address the Veteran's contentions. See January 2013 Board Remand. The Board finally found that a January 2013 VA examination did not provide the requested opinions as directed in the January 2013 Remand. See May 2013 Board Remand. The June 2013 VA addendum opinion is afforded high probative value as it was made after a review of the relevant evidence and history, physical examination of the Veteran, and contains a rationale for the conclusion reached. The Board makes no distinction on direct causation as to whether the back disability was in whole or in part caused by the Veteran's active military service. The VA examiner found that at least in part, the Veteran's heavy lifting in service, contributed to his current back condition. As such, service connection for a back disability is warranted. ORDER Service connection for lumbar-sacral strain and degenerative changes of the lumbar spine is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs