Citation Nr: 1333567	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  08-02 191	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine and spondylolisthesis.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Patricia Veresink, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 2002 to March 2003.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Board remanded the issues to afford the Veteran a VA examination and nexus opinion in December 2011.  The opinion was provided in March 2012 with addendums in March 2012 and August 2012.  Although the examiner did not specifically respond to the Board's questions, in light of the grant of service connection in the decision below, the Board finds that the Veteran is not prejudiced.   Therefore, an additional remand is not required to ensure compliance with the Board's directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDING OF FACT

Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's DDD of the lumbar spine and spondylolisthesis first manifested during service.  


CONCLUSION OF LAW

DDD of the lumbar spine and spondylolisthesis was incurred in service.  38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants service connection for a low back disability.  As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary regarding this issue.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  38 C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  Id.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 C.F.R. § 7104(a) (West 2002).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74   (1997); Layno v. Brown, 6 Vet. App. 465, 469   (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

The Veteran contends that she has a low back disability that began during service.  Service treatment records show numerous complaints of low back pain.  The Veteran continuously related her low back pain to a single injury during physical training.  Additionally, the Veteran was diagnosed with spondylolisthesis in service and separated from service due to this.  

Post-service, the Veteran claims that she has experienced recurrent symptoms of low back pain since separation from service, and the treatment records bear this out, with the diagnosis now including degenerative disc disease.  

The Board notes that scoliosis was noted at service entrance, not spondylolisthesis and degenerative disc disease, and there is no medical document of record holding that spondylolisthesis and degenerative disc disease are the same as, or symptoms of, scoliosis.  Although the March 2012 VA examination report and subsequent addendums were adverse to the claim, with the examiner holding that the injury the Veteran described in service was insufficient to produce the claimed disability, the fact remains that spondylolisthesis was first shown in service.  Again, the disability noted at service entrance was scoliosis.  Although the examiner's inference is that indeed, the presence of scoliosis at service entrance was a manifestation of the later diagnosed spondylolisthesis and degenerative disc disease, the absence of an explicit statement to that effect by the examiner, or in the service treatment records, places the evidence on the question of when spondylolisthesis first presented in equipoise.  Resolving the question in the Veteran's favor yields the conclusion that her current disability, spondylolisthesis and degenerative disc disease, was incurred in service.  


ORDER

Service connection for DDD of the lumbar spine and spondylolisthesis is granted.  



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs