Citation Nr: 1333818	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  09-30 632	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for a thoracolumbar spine disability.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

P. Childers, Counsel


INTRODUCTION

The Veteran served on active duty from June 1980 to December 1985. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In June 2011 and June 2012, the Board remanded the matter for further development.  No further action to ensure compliance with the Board's remand directives is required.  


FINDING OF FACT

The Veteran's degenerative disc disease of the lumbar spine and thoracic spine had its onset in service.  


CONCLUSION OF LAW

A chronic back disability, currently diagnosed as lumbar and thoracic degenerative disc disease, began in service.  38 U.S.C.A. §§ 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSIONS

In this decision the Board is granting the claim of service connection for a low back disability, which is the only issue on appeal.  As such, no discussion of VA's duty to notify and assist with regard to this issue is necessary.

The Veteran seeks service connection for a back disorder, which he says began while he was working on a truck during his tour of duty in Germany.   

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).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and severity of his recurrent 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 at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

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 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (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).  

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).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See Id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

The Board, as fact finder, must determine the probative value or weight of the admissible evidence.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  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 Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 

Facts 

Service treatment records dated in June 1981 document complaints of low back pain of two weeks duration during the Veteran's tour of duty in Germany.  Physical examination found full range of motion and no radiculopathy, but there was right paravetebral muscle tenderness.  Diagnosis was functional low back pain, for which the Veteran was given Motrin, and given a handout/counseled regarding low back pain.  During his June 1985 separation examination he admitted to recurrent low back pain; and in December 1985 he filed a claim for service connection for low back pain.  Because the Veteran did not report for a scheduled VA examination, that claim was denied based on the in-service records, on the grounds "no residuals noted on 6-7-85 separation examination."  

In correspondence dated in March 2007 the Veteran requested that his claim for service connection be reopened.  As the Board determined and for the reasons stated in its May 2011 decision, new and material evidence is not needed to consider the Veteran's 2007 claim for service connection for a back disorder on the merits.

VA and private medical records dating from 2006 note complaints of back pain.  X-rays of the lumbar spine were negative.

On VA examination in June 2011 the Veteran complained of back pain since onset in-service.  X-rays were negative.  Diagnosis was "normal examination."

On VA examination in October 2012 the Veteran complained of back pain since onset in service.  An MRI found degenerative disc disease of the lumbar and thoracolumbar spines.  Diagnosis was lumbar degenerative disc disease and thoracic degenerative disc disease.  The examiner then opined that the Veteran's current thoracolumbar disease was not related to service because of "a temporal gap of about 22 years between the initial injury and the dx of degenerative disc disease in 2007."

Analysis

The record contains competent medical evidence of back pain during service, but not before.  Although diagnosis in service was functional low back pain, the Board notes that radiology testing was not done, so the absence of a diagnosed disorder during service is not fatal to the Veteran's claim.  

Additionally, there is credible lay evidence of back pain since onset.  During his 1985 separation examination the Veteran complained of having recurrent back pain, and he presently complains of back pain since initial onset.  As the Board finds his account of having back pain during and since service both competent and credible, the Board finds that the evidence shows that he has had ongoing back pain since initial onset in June 1981.  Madden, 125 F.3d 1477, 1481.  

There is also evidence of a current thoracolumbar spine disability.  Although the VA examiner concluded that the Veteran's current thoracolumbar disorders were not related to service, the Board does not find this opinion to be probative since the examiner did not address the Veteran's consistent complaints of back pain since initial onset in 1981; which the Board has determined is credible.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion).  Moreover, MRI testing, which detected the Veteran's degenerative disc disease, was not done prior to 2012, so the Board finds the absence of diagnosis prior to October 2012 to be of little consequence; particularly as there is credible lay evidence of recurrent back pain since initial onset in service.

In sum, service treatment records confirm that the initial onset of back pain during service, and of recurrent back pain over the next four years of the Veteran's active duty service.  There is also credible lay evidence of back pain since onset in service; and competent medical evidence of a current thoracolumbar spine disorder, diagnosed as lumbar and thoracic degenerative disc disease.  As there is evidence of a current back disability; evidence of in-service incurrence/ injury; and evidence of recurrent back pain since initial onset in service, the Board finds that the criteria for a grant of service connection on a direct basis for a thoracolumbar spine disability, diagnosed as lumbar and thoracic degenerative disc disease, are met.  


ORDER

Service connection for thoracolumbar spine disability, diagnosed as lumbar and thoracic degenerative disc disease, is granted.  




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs