Citation Nr: 1335909 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-06 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from February 1964 to February 1966. This matter is on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran previously testified before an Acting Veterans Law Judge (AVLJ) in June 2011. Thereafter, in December 2011, the Board determined that the Veteran's previously denied claim for service connection for a low back disability should be reopened. Accordingly, the Board granted that portion of the Veteran's appeal and remanded the underlying de novo claim for service connection for a low back disability further development. The AVLJ who had conducted that initial hearing thereafter left the Board. In March 2013, the Veteran's claim for service connection for a low back disability was remanded to accord him the opportunity to testify before a current Veterans Law Judge (VLJ). That second hearing was conducted before the undersigned VLJ in May 2013. Transcripts of both hearings are of record. FINDING OF FACT The Veteran's current lumbar spine disorder, diagnosed as herniated nucleus pulposus, residuals of a laminectomy to the L4-L5 disc, and degenerative joint disease of the lumbosacral spine, is a result of an in-service injury. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder, diagnosed as herniated nucleus pulposus, residuals of a laminectomy to the L4-L5 disc, and degenerative joint disease of the lumbosacral spine have been met. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, without deciding that any error was committed with respect to either the duty to notify or the duty to assist, any such error was harmless and need not be further considered. Service Connection The Veteran seeks service connection for a lumbar spine injury. At his hearing before the Board in May 2013, he explained that his duties while on active duty included loading and transporting heavy materials. He specifically described his injury as one where he bent down to lift a heavy object and could not stand back up, and that he evaluated periodically for almost a month after this incident. However, he did not undergo any invasive treatment at that time, but was instead placed on light duty for what was effectively the remainder of his service. The evidence indicates that he has undergone laminectomies to the L4-L5 disc on two occasions since leaving active duty. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). Evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In some cases, the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders. 38 C.F.R. § 3.303(b); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be "chronic" under 38 C.F.R. § 3.309(a). As is relevant here, arthritic disorders of the spine are considered a chronic under 38 C.F.R. § 3.309(a), and may be service connected under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection will also be presumed for chronic diseases such as degenerative arthritis if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2013). Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). After a thorough review of the claims folder, the Board finds that service connection for a lumbar spine disorder is warranted. As an initial matter, there is some evidence to suggest that the he had a low back disorder of some sort prior to service. For purposes of service connection, a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrated that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Significantly, for a disorder to be "noted upon entry into service" within the meaning of 38 C.F.R. § 3.304(b), the condition must be specifically recorded in the entrance examination report. Crowe v. Brown, 7 Vet. App. 238, 245 (1994). A "history of pre-service existence" of a disease does not constitute a notation of such condition. See Id. at 240. Even though the disorder need not be symptomatic at the time of the evaluation, an affirmative diagnosis must be provided. Verdon v. Brown, 8 Vet. App. 529, 530 (1996). If the claimed condition was not noted upon entry into service, VA cannot conclude that it preexisted service unless it can demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Here, the Veteran stated at his induction physical examination in December 1963 that he injured in back in a July 1960 motor vehicle accident. While the examiner acknowledged the Veteran's stated history, referring to it as a "twist" of the back with some "slight" symptoms, no actual back disorder was clinically observed upon examination. Thus, a back or spine disorder was not observed upon the Veteran's entry into service. Crowe v. Brown, 7 Vet. App. at 245. Moreover, there is insufficient evidence for VA to establish by clear and unmistakable evidence that a back disorder was present prior to service. To the contrary, despite the Veteran's statement that he injured his back in 1960, there is no evidence indicative of an actual diagnosed disorder on that occasion or at any other time before he enlisted. Therefore, the Veteran's statements regarding a pre-service injury notwithstanding, his lumbar spine is presumed to have been in sound condition when he entered service. Next, the Veteran's service treatment records indicate that he experienced lumbar spine symptoms during his active duty service. Notably, he was evaluated in March 1965 for complaints of low back pain after playing volleyball. According to an April 1965 notation, he awoke the next morning unable to get out of bed and was taken to the base hospital for treatment. While the diagnosis at that time was limited to a lumbosacral strain, there is no indication that any X-rays were taken to consider potential spinal involvement. Moreover, a follow-up notation from May 1965 indicated that he continued to experience pain, especially when bending forward or lifting objects. While no diagnosis was rendered at that time, the Board also notes that part of his treatment plan included "traction to [the] left lower extremity," which suggests that there may have been some sciatic nerve involvement. In addition to the fact that there is evidence of a lumbar spine injury in service, the evidence also indicates that low back symptomatology continued in the years since the Veteran left active duty. Specifically, treatment records from 1972 reflect that he continued to experience relatively long-term low back symptoms, characterized by limitation of motion and radiating pain in the right lower extremity. A lumbar myelogram indicated a ruptured disc at the L5 vertebra, which ultimately required a laminectomy of the L4-L5 disc in November 1972. The evidence also reflects that the Veteran's lumbar spine symptoms persisted even after his 1972 surgery, which necessitated a second laminectomy in July 1977. Moreover, in addition to his spinal disc symptoms, he began to develop arthritic spurring. In fact, a more recent evaluation in July 1998 indicated the presence of "significant degenerative changes" in the spine, characterized by osteophyte formation in the mid-lumbar spine and calcification of the L4-L5 disc space. The Board acknowledges that the Veteran's surgery in 1972 was approximately six years after the left active duty, and that there is no evidence of clinically observed symptoms since he left active duty in 1966. However, it is clear from the 1972 treatment records that he had characteristic symptoms of lumbar spine pathology well before this time, and the evidence also does not indicate a recent trauma that may have caused his spinal condition. The Board is also persuaded by the Veteran's statements asserting continuity of symptoms since service. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). While it is true that he may not be competent to self-diagnose a spine disorder such as a herniated disc or degenerative arthritis, because this requires a determination that is medical in nature, see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), his lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Board finds the assertions made by the Veteran at his May 2013 hearing regarding lumbar spine symptoms to be credible. Moreover, his statements are at least partially supported by the evidence of record, and most notably by the absence of any specific injury to the lumbar spine since leaving active duty. The Board also acknowledges that a VA examiner opined in January 2012 that it was less likely than not that the Veteran's current low back disorder was related to service. In providing this opinion, the examiner reflected that the Veteran's low back disorder clearly and unmistakably preceded service and was not aggravated by service. In the Board's view, the VA examiner's conclusions are based on an inaccurate understanding of what constitutes "clear and unmistakable evidence" for rebutting the presumption of sound condition when a veteran enters service. Moreover, even if such evidence had been shown, the examiner's opinion is insufficient for the Board to conclude that there was also clear and unmistakable evidence that the Veteran's disorder was not aggravated by service, as is required by 38 C.F.R. § 3.303(b). As such, while the Board respects the examiner's opinions, they are not sufficient to meet the legal standards required in this case. As such, when viewing the evidence in its totality and resolving every reasonable doubt in his favor, the Board concludes that the Veteran's lumbar spine disorder that required a laminectomy in 1972 was at least as likely a direct result of his in-service injury. In so concluding, significant weight is afforded to the credibility of the Veteran's assertions that he experienced symptoms since active duty. Thus, although there is some evidence that weighs against entitlement, the evidence as a whole is at least in equipoise. Therefore, service connection for a low back disability characterized as herniated nucleus pulposus, residuals of a laminectomy to the L4-L5 disc, and degenerative joint disease of the lumbosacral spine is granted. ORDER Service connection for a low back disability, diagnosed as herniated nucleus pulposus, residuals of a laminectomy to the L4-L5 disc, and degenerative joint disease of the lumbosacral spine is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs