Citation Nr: 1335868 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 05-37 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Eric Gang, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active military duty from January 1968 to December 1970 and from February 1971 to February 1977. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). The case was remanded by the Board to the RO in June 2010 for additional development. An October 2011 Board decision denied service connection for a lumbar spine disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), which, in December 2012, vacated and remanded the issue on appeal back to the Board, in accordance with a December 2012 Joint Motion For Remand (Joint Motion) for the Board to more adequately address the credibility of the supporting lay statements as to continuity of symptomatology. The Veteran and his daughter testified at a personal hearing before the undersigned Veteran's Law Judge (VLJ) sitting at the RO in January 2009, and a copy of the hearing transcript is of record. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's lumbar degenerative disc and facet joint disease is due to an event or incident of his active service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, the criteria for service connection for lumbar degenerative disc and facet joint disease have been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for a lumbar spine disability due to service trauma. According to the December 2012 Joint Motion, the Board's October 2011 decision did not adequately address the credibility of the supporting lay statements as to continuity of symptomatology. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). In the case of degenerative arthritis, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The Veteran's service treatment records reveal that the Veteran served in Vietnam from April 1969 to March 1970, during which time his primary occupational specialty was as a general vehicle repairman. No awards or decorations identifying combat involvement were received as to either period of active duty. Service examination and treatment records indicate that the Veteran sought medical attention in May 1969 for a complaint of right inguinal pain after heavy lifting, but no back-related complaint or abnormality was documented. A separation examination in December 1970 revealed no complaints or findings of a low back disorder. A period of medical treatment was required in March 1973 for unspecified musculospastic disease and muscle strain which entailed the thoracic spinal region. Medical assistance was received in November 1976 for low back pain after loading lumber; the initial assessment was of muscle spasm, followed by evaluation by a physician that led to entry of an assessment of lumbar muscle strain, secondary to improper body mechanics. A physical profile was assigned for low back pain at that time that prohibited lifting of weight in excess of 15 pounds, as well as stooping or squatting exercises. On a separation medical examination in November 1976 the Veteran complained of recurrent back pain; examination findings yielded a diagnosis of acute low back pain since October 1976. According to private treatment reports dated from July 1994 to January 1998, the Veteran incurred a twisting injury to the back when cutting trees in July 1994. He had the onset of back pain in October 1995 after operating heavy equipment, a Bobcat. He had low back surgery in April 1996 and February 1997. The impression by J. L. Haro, M.D., in November 1997 was mechanical back pain secondary to facet degeneration at L5, bilaterally. VA provided the Veteran a VA spine examination in June 2007, findings and opinions from which culminated in entry of a diagnosis of lumbosacral degenerative disc disease with postoperative residuals of a herniated nucleus pulposus at L3-4. A medical opinion was provided by the examining VA physician, based on his review of examination findings and the record as a whole, that it was less likely than not that the diagnosed lumbar spine disorder was related to the brief episodes of low back strain in service. The VA examiner noted that service treatment records identified a thoracic spine injury in 1973, as well as low back strain in 1975 and 1976. Post service low back injuries in 1995 and 1996 were cited, with diagnosis of a herniated nucleus pulposus and surgical treatment following. The Veteran testified at his January 2009 personal hearing that he sustained a low back injury in Vietnam at the age of 19 years when during the course of performing assigned duties as a mechanic, a rocket landed nearby and he was pushed to the ground, thereby injuring his low back. In addition, he produced certain other evidence, including various internet articles regarding low back disorders and lay statements from certain individuals. In those written statements received by VA in January 2009, one such lay affiant reported having been initially acquainted with the Veteran in 1974 during military service and recalling that at that time and subsequently the Veteran stated that he sustained a back injury in Vietnam and had two subsequent back injuries. The other lay affiants, none of whom served with the Veteran in the military, reported that the Veteran's back problems began in the early 1970s. According to D.B., who had known the Veteran since 1972 and remembered that the Veteran had had back problems several times in service, the Veteran had told him that his back problems had been caused by an incoming rocket exploding near him in Vietnam. Although not documented in his service treatment reports, the Veteran's account of an enemy rocket explosion in close proximity to him while on active duty in Vietnam is not incredible and its occurrence and the report of a back injury are therefore conceded for the purposes of determining entitlement to service connection for residuals of that injury or any resulting lumbar spine disability. According to a May 2013 medical evaluation report from T. K. Guthrie, M.D., a retired United States Air Force Colonel who is a practicing Family Physician with experience in Family Medicine, Urgent Care, and Emergency Medicine, he had reviewed the Veteran's service treatment and post-service medical records in order to provide a nexus opinion based on the pertinent evidence of record. Dr. Guthrie noted the Board finding in its October 2011 decision that the Veteran sustained an injury in service in which he was thrown to the ground after a rocket explosion. The Veteran's later development of very painful facet disease leading to recommendation for nerve ablation therapy was considered by Dr. Guthrie to be the subsequent result of much earlier disk injury and degeneration. Dr. Guthrie noted that, with respect to the complaints of pain after operating heavy equipment in October 1995, being knocked to the ground due to a rocket attack is a more likely cause of the Veteran's degenerative disease than the bouncing of a Bobcat in an unexpected direction. Rather, Dr. Guthrie though it evident that the Bobcat incident unmasked ongoing chronic degenerative disease of the lumbar spine, with acute symptoms that were finally disabling enough to cause the Veteran to seek care. Dr. Guthrie concluded in May 2013 that the blast injury, as described by the Veteran and validated in the VA appeals review, as likely as not caused the initial injuries to the lower back disc and ligaments that led over the years to his lumbar degenerative disc and facet disease that eventually required surgery. Having carefully considered the claim in light of the record and the applicable law, the Board finds that the evidence reasonably shows that the Veteran's current degenerative disc and facet joint disease of the lumbar spine was incurred as a result of service and that there has been continuation of symptomatology since service. In this case, the Board finds the Veteran's assertions regarding the continuity of his symptoms to be credible and corroborated by competent medical evidence. By extending the benefit of the doubt to the Veteran, as required by law, the Board finds that service connection for degenerative disc and facet joint disease of the lumbar spine is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Because this issue is being granted in full on appeal, no further notice or development under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) is needed. ORDER Entitlement to service connection for degenerative disc and facet joint disease of the lumbar spine is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs