Citation Nr: 1335924 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-26 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from February 1984 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The Veteran has a current low back disability diagnosed as lumbar strain and degenerative disc disease. 2. Service treatment records reveal that the Veteran injured his low back in a motor vehicle accident during service with a diagnosis of lumbosacral strain. 3. Service treatment records reveal that the Veteran reported complaints of recurrent back pain on separation examination in November 2003. 4. The evidence of record supports a continuity of symptomatology of low back pain dating from service to the present. 5. The probative medical opinion of record links the Veteran's current low back pain to the injury incurred during service. CONCLUSION OF LAW A low back disorder was incurred in active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA is required to meet statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Given the favorable outcome below, no conceivable prejudice to the Veteran could result from the grant of service connection for a back disorder. See Bernard v. Brown, 4 Vet. App. 384 (1993). Generally, service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). The Veteran retired after serving 20 years in the U.S. Marine Corps. He served on active duty from February 1984 to February 2004. Service treatment records reveal that the Veteran injured his low back in a motor vehicle accident in January 1998; the diagnosis was lumbosacral strain. A March 1999 treatment record reveals that the Veteran had complaints of back pain for the prior two weeks, with no know injury at that time. Again, the diagnosis was lumbosacral strain. In November 2003, a separation examination of the Veteran was conducted. At that time, the Veteran reported a history of recurrent back pain, numbness, and tingling. In October 2003, a VA examination of the Veteran was conducted in conjunction with his separation examination from service. The Veteran reported symptoms of intermittent tightness, stiffness, and discomfort of the low back, especially with sitting for long periods of time. Physical examination of the lumbar spine was essentially normal, with no noted abnormalities. The examiner stated that "there is no clear pathology to render a diagnosis." A November 2004 VA outpatient treatment record indicated that the Veteran had no back pain at that time. Private treatment records reveal that the Veteran sought treatment from a private physician for complaints of low back pain. The initial treatment record documenting these complaints of low back pain is dated February 2006, which is two years after the Veteran separated from service. By April 2006, the diagnosis was recurring paralumbar strain/spasm. In May 2009 a VA examination of the Veteran was conducted. The diagnosis was lumbar spinal stenosis. However, the medical opinion was inadequate. An August 2009 private treatment record indicates that the Veteran reported ongoing back pain and stiffness dating back to the injury during service. The diagnosis was ongoing back pain, with degenerative disc disease and mild degenerative joint disease, likely partially due to the car wreck during service. The diagnosis of degenerative disc disease was confirmed by a private magnetic resonance imaging scan dated December 2008. Recent VA medical treatment records dated in May 2012 reveal that the Veteran sought treatment for complaints of low back pain. The documented history of injury and back pain in these records indicates the in-service motor vehicle accident along with a reported continuity of symptoms of low back pain since that time. In June 2013, the most recent VA examination of the Veteran was conducted. The examiner indicated that an in-person examination of the Veteran was conducted, along with a review of the Veteran's VA medical records. After full examination the diagnosis was back strain and multilevel lumbar disc disease. The examiner's medical opinion was that the Veteran's current low back disorder was not related to service, including the documented back injury. As rationale, the examiner indicated that there were no low back complaints from the time of treatment in 1999 during service, until 2009. An addendum to the examination report indicates that the examiner subsequently reviewed the claims file, but no change to the medical opinion involving direct service connection was made. The medical opinion provided in the 2013 VA examination is not probative. Despite the examiner indicating that the claims file was reviewed, clearly important medical evidence was not considered. The examiner's opinion is based on the assertion that the Veteran had no reported, or documented, symptoms of low back pain from the time of treatment in 1999 during service, until post-service treatment in 2009, a period of a decade. This is not correct, and therefore the examiner's opinion was based on factual inaccuracies. The Veteran reported symptoms of intermittent back pain on separation examination medical history in November 2003 and examination in October 2003. Private medical records reveal that the Veteran sought treatment for low back pain in February 2006, two years after he separated from service, not the decade that the examiner indicates. Further, an April 2006 private medical note specifically indicates that the Veteran's lumbar strain and spasm were "recurring," which links it to prior occurrences of the same symptoms. Finally, the private physician specifically linked the current low back disability to the Veteran's in-service injury and low back symptoms in an August 2009 note. The examiner who provided the medical opinion in the 2013 VA examination report did not address or even consider any of these facts. Accordingly, the medical opinion provided in the 2013 VA examination report is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). The Veteran has a current low back disability. The Veteran injured his back during service. He has had symptoms of recurring back pain since that injury. The medical evidence of record supports the assertion of continued symptoms of back pain from the injury during service to the present. A probative private medical opinion links the Veteran's current low back disability to the injury and symptoms during service. Accordingly, service connection for a low back disorder is warranted. ORDER Service connection for a low back disorder is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs