Citation Nr: 1333875 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 08-28 050 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Aaron Bill, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1990 to March 1991; from March 2003 to April 2004; and from June 2007 to September 2007. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2007 rating decision. The Board has not only reviewed the Veteran's physical claims file but also his file on the "Virtual VA" system to ensure a total review of the evidence. In March 2011, the Veteran testified at a hearing on the record before a Decision Review Officer (DRO). A transcript is associated with the claims file. In April 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge via videoconferencing. A transcript is associated with the claims file. FINDINGS OF FACT 1. The Veteran sustained an injury to his back in service while working as a light wheel vehicle mechanic. 2. The Veteran has provided credible lay evidence of an in-service onset of a back problem and unremitting back problems since service. 3. The credible medical evidence of record supports a finding that the back injury from which the Veteran currently suffers had its onset in service. CONCLUSION OF LAW The criteria for service connection for a low back disability have been met. 38 U.S.C.A. §§ 1110, 1155, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on the Department of Veterans Affairs to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1) (2012). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on the claim for VA benefits. In the decision below, the Board grants service connection for a low back disability. As such action represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and to assist is necessary as to that issue. Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). In this case, the Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by a veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). 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). 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). The Veteran is diagnosed with a low back disability including arthritis, which is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra, 1 Vet. App. at 57. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 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 Veteran asserts entitlement to service connection for a low back disability. The Veteran contends that his current low back disability is related to his service, and that his low back disability started in service based on an injury suffered in 1991 while in the Army working as a light wheeled vehicle mechanic. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The evidence of record in support of the Veteran's claim includes a VA examination report from September 1994 indicating the Veteran reported intermittent low back pain; a March 2007 letter from a VA physician stating after a review of the Veteran's file that his back disability "is more than likely related to or was aggravated by" the Veteran's 1991 injury; a December 2009 letter from a VA physician stating after an examination that the Veteran's back disability is related to his 1991 accident; a March 2010 opinion from a VA physician stating that the Veteran's low back pain "is related to active duty service" based upon a review of the Veteran's medical records; and also the Veteran's own lay statements and testimony at both his March 2011 DRO hearing and April 2012 Board hearing. The record includes evidence that is against the claim. The evidence against the claim of service connection includes a February 2007 VA examination report indicating that it is "not as likely as not related to the low back condition as recorded in the military record"; a March 2008 VA examination report opining that the Veteran's current low back pain is "not caused by, a result of, or related to the low back condition as recorded in the military record"; an April 2013 VA examination report that stated that the Veteran's current back disability is not related to his military service and a subsequent addendum in July 2013 in support of the April 2013 report. The Board finds that the weight of the probative and credible evidence, both lay and medical, supports the claim and service connection for a low back disability is warranted. The Board finds that the negative opinions, should be afforded less probative weight than the evidence in support of the claim, on the basis that the examiners did not adequately address the evidence of record, including relevant treatment records, and older examination reports of record. The April 2013 VA examination reported and July 2013 addendum noted that various letters and statements related to the Veteran's condition were reviewed but agreed with the March 2007 report which stated that the 1991 lower back problem had resolved itself. The examiner did not address the evidence attributing the Veteran's lower back disability to the injury he suffered in service and evidence of symptoms after service. The February 2007 and March 2008 also indicated that the low back condition noted in service apparently resolved and that there was no evidence of ongoing problems until 2005. In contrast, the evidence in support of service connection demonstrates a review of the entire claims file including records from treatment sought for the Veteran's back disability in the years between 1991 and 2005. In an April 1991 medical report and a June 1991 VA examination, the Veteran complained or low back pain. In a September 1994 examination, the Veteran reported occasional low back pain. This evidence is afforded more probative weight than the negative medical opinions as it is contemporaneous evidence that shows symptoms of back pain beginning in 19991 and support the Veteran's contentions that the back disability began in service and has been unremitting since service. Additionally, the Veteran has competently testified that he suffered an injury in 1991 and has experienced the same symptoms of his low back disability since the initial injury in 1991. The Board finds the Veteran to be both competent and credible to report the symptoms he has experienced since his in-service injury in 1991. See Layno v. Brown, 6 Vet. App. 465 (1994). While competent and credible medical evidence is needed to support the Veteran's lay assertions regarding symptoms and etiology of the current back disorder, the weight of the lay and medical evidence of record supports a finding that service connection for the Veteran's low back disability is warranted. As such, the weight of the lay and medical evidence demonstrates credible evidence of in-service trauma, in-service onset of a low back disability and unremitting symptoms since service. The Veteran has a current diagnosis of degenerative disc disease and arthritis. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for a low back disability is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a low back disorder is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs