Citation Nr: 1336210 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-30 307 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1971 to July 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Chicago, Illinois RO. In November 2009, a hearing was held before a Decision Review Officer (DRO) at the RO; a transcript of the hearing is included in the claims file. In March 2013, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file. At the Board hearing the Veteran requested, and was granted, a 60 day abeyance period for the submission of additional evidence; such evidence was submitted accompanied by a waiver of RO consideration. FINDING OF FACT The Veteran has a chronic low back disability which became manifest in service and has persisted. CONCLUSION OF LAW Service connection for a low back disability is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist oversight is harmless. Legal Criteria, Factual Background, and Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic disabilities (including arthritis) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following a veteran's discharge from active duty (one year for arthritis). 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence that is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends, in essence, that he has a chronic low back disability that had its onset due to an injury in service and has persisted since. The evidence of record, including numerous VA treatment records and a VA examination, shows that the Veteran experiences persistent low back pain that has been diagnosed as due to degenerative disc disease of the lumbar spine. It is not in dispute that he currently has such disability. The Veteran's STRs show that he received treatment for low back problems in service. In April 1971, he reported back pain after falling off his bunk; his back was noted to be "blue and black". In an April 1972 report of medical history, the Veteran reported recurrent back pain. In a March 1998 treatment report, Dr. Medina noted that the Veteran suffered an accident in August 1996 in which he fell to the floor on a Chicago Transit Authority train; since that time he had experienced continuous neck pain, shoulder pain, headaches, and lower back pain. The low back pain was located in the lumbosacral spine and radiated to the right lower extremity. Dr. Medina noted that in a previous accident in 1991, the Veteran fell from a catwalk that was 10 feet off the ground, injuring his cervical and lumbar spine and requiring cervical fusion surgery. A February 1998 MRI of the lumbar spine showed bulging L4-L5 disc with narrowing of the neuroforamina. Following a physical examination, the diagnoses included lumbar radiculopathy and lumbar disc bulge; Dr. Medina noted that these diagnoses were due to the August 1996 accident. A January 2001 MRI of the lumbar spine showed a small disc protrusion or herniation into the right L4-5 foramen causing borderline compromise. In October 2001, the Veteran reported back and right leg pain. An MRI of the lumbar spine showed a small right lateral disc herniation at the L4-5 level; the herniated disc appeared smaller than shown previously. A December 2001 MRI of the lumbar spine showed that the small right lateral disc protrusion at the L4-5 level had decreased since the previous study. In his June 2003 claim statement, the Veteran stated that in April 1971 he was ill and fell out of his bunk, hitting his head and back on the floor very hard. He stated that he woke up in a hospital and his back was black and blue from falling onto the floor. He stated that his back continued to hurt badly after he returned to duty but his sergeant would not allow him to seek treatment. He contended that his current back disability stems from the fall and injury in service. In a June 2003 lay statement, the Veteran's sister described his injury in service and the difficulties he has had from the resulting back disability. In a November 2004 medical statement, Dr. Leszczak noted the Veteran had complaints of back pain and took multiple pain medications. Dr. Leszczak described the clinical findings, and stated that the Veteran had a significant trauma history dating back to his military days and had symptoms limiting his daily functions and findings consistent with advanced spine disease related to his fall years earlier. On January 2005 VA examination, the Veteran complained of constant low back pain radiating to the right lower extremity. He reported that he fell out of his bunk during service in 1971 and sustained a low back injury, and also fell from a catwalk as a transit employee in 1990 after which he underwent cervical spine surgery. A 2003 MRI of the lumbar spine was noted to show degenerative joint disease of the lumbar spine and a small central disc herniation at L4-5. Following physical examination, the diagnoses included degenerative joint disease of the lumbar spine with small disc herniation at L4-5. The examiner opined that there is sparse documentation with one entry in the STRs of lower back trauma in 1971 from a fall. The examiner noted that the claims file also references a fall in 1996, which the examiner opined appeared to have been a major contribution to the Veteran's current lower back disability as no documentation was found regarding a back complaint from 1971 prior to 1996. The examiner concluded that the Veteran's lumbar spine condition at least as likely as not is related to his military service. In an April 2005 addendum, a different VA examiner opined that, in terms of the Veteran's low back complaints, there is some reference that he had his low back evaluated in the STRs for an injury. The examiner opined that the complaint concerning the low back problem is at least as likely as not related to his initial injury that he sustained while in the service. A September 2005 X-ray of the lumbar spine showed mild degenerative disc disease in the lumbar spine diffusely. A January 2006 rating decision denied service connection for disc bulge of the lumbar spine with radiculopathy. In June 2006, the Veteran requested a reconsideration of his claim. In support, he submitted a May 2006 medical opinion statement from Dr. Leszczak, who stated that he had been treating the Veteran for the last four years, mainly for ongoing neck pain and low back pain. Dr. Leszczak noted that the Veteran had degenerative disc disease of the lumbar spine diagnosed. He noted the 1971 injury from a fall in service that injured the Veteran's back, after which he was denied care by his commanding officer despite ongoing back pain since the fall. He noted that the Veteran was under the care of chiropractors between 1971 and 1991 and suffered ongoing discomfort and pain; he took various medications prescribed by different doctors. He noted the Veteran's injury when he fell from a catwalk while working for the Chicago Transit Authority which caused a neck injury; he noted that the Veteran blamed his neck injury on a gait problem due to ongoing back pain at that time. He noted that the Veteran had a third injury in 1996 when he stepped on a soda can, reinjuring his neck. He noted the Veteran's main complaints are ongoing low back pain and neck pain and described the difficulties caused by both. He noted that he had examined the Veteran multiple times and he had significant findings that support the diagnosis of significant and severe neck and back injury secondary to ongoing degenerative disc disease, which he opined is more than likely caused by the injuries that started in 1971 after his fall from the bunk bed while in service. He stated that it is well known to orthopedic doctors that degenerative disc disease and degenerative joint disease may, and often do, start with trauma; he opined that the Veteran's problems clearly started after his initial fall and progressed as such problems would be expected to progress over the years. The April 2007 rating decision on appeal continued the denial of service connection for disc bulge of the lumbar spine with radiculopathy. At a November 2009 RO hearing, the Veteran testified that he was sleeping on a top bunk in his barracks with a high fever, and he rolled out of bed and hit the floor hard on his back. He testified that he was semiconscious and woke up two days later in a hospital with back pain. He testified that he reported back to duty though his back was still hurting, but his company commander denied his request to seek medical treatment. He testified that the back problems continued throughout service. He testified that he saw his family physician right after he graduated from basic training in 1971 until 1973, he saw other doctors for physical therapy from about 1976 to 1978, and he continued to self-treat with pain medication for many years afterward. He testified that he was injured in a work-related fall in 1991 and was treated only for his neck, and not for his back at that time. He testified that he suffered another work-related injury in 1996 and believed it could have caused an aggravation of the back injury incurred in service. On December 2009 VA examination, the Veteran reported that he injured his lower back in April 1971, about two weeks into basic training. He reported that the back pain had not changed in intensity throughout the years. He reported that he fell from a catwalk while working "25 years later" (in 1996) and injured his cervical spine for which he had a subsequent fusion. Following a physical examination, the diagnosis was chronic low back pain to rule-out spinal stenosis with degenerative joint disease of the lumbosacral spine. The examiner opined that it is as likely as not that the degenerative joint disease of the lumbar spine is related to the Veteran's injury in service. In a March 2010 addendum opinion, the December 2009 VA examiner opined based on a review of the claims file that it is less likely than not that the Veteran's degenerative lumbar disc disease and radiculopathy (as noted on March 1998 examination) is related to his in-service back injury in 1971. The examiner opined that the current lumbar disc disease is as likely as not related to the injury in August 1996. The examiner noted that records reveal the Veteran was seen by Dr. Yapor in May 1992 and all of his reflexes were within normal limits except for his bilateral biceps, and the examiner also noted reviewing an examination by Dr. Medina. In a May 2010 medical opinion statement, Dr. Leszczak stated that the Veteran has chronic back, neck, and leg pain and had sustained an injury to his back after falling from a bunk bed in April 1971. He noted that the Veteran had since had ongoing pain and multiple evaluations by orthopedic surgery and neurosurgery, and he had been through multiple therapies, taken various medications, and qualified for total disability due to the cited problems. Dr. Leszczak stated that the Veteran had been his patient for many years and all of his problems had been evaluated and discussed on many occasions. He opined, "It is clear to me that his back injury from 04/1971 is the reason for his disability and current back problems." At the March 2013 Travel Board hearing, the Veteran testified that in April 1971 he fell from his bunk and suffered some injuries including a low back injury; he was treated at a base hospital. He testified that he continued to have back problems that interfered with his training activities including running. He testified that he was limping and requested permission to go on sick call but was denied. He testified that he then graduated from basic training and served as a cook, but he continued to have muscle spasms and low back pain that affected his sciatic nerve and radiated to his right leg. He testified that he had difficulty remaining standing while he worked in the mess hall, and his back pain persisted throughout service. He testified that he first sought private treatment for his persistent low back pain with his family physician Dr. Roselli in early 1973 (within six months of separating from service), and he was given heat treatments and prescription medication for pain relief. He was referred to physical therapist Dr. Gagliardi, whom he saw for treatment from approximately 1976 to 1978, during which time he also saw neurologist Dr. Schmidt and chiropractor Dr. Gill for ongoing back pain. He testified that he attempted to locate and obtain treatment records for this private treatment throughout the 1970s but was unsuccessful. He testified that he continued to self-treat his persistent ongoing back pain after moving to Chicago in 1989 or 1990. He testified that although he suffered a work related injury to his cervical spine in 1991, it was unrelated to his chronic low back problems. He testified that he sought treatment from Dr. Medina beginning in 1996, and has been unsuccessful in obtaining those records as well. He testified that his low back pain has been a persistent problem since the original injury in service. In an April 2013 medical opinion statement, Dr. Pugliese, director of the Grand Harlem Medical Clinic, noted that the Veteran sought treatment there in March 1991 for lower back pain. Dr. Pugliese noted that the Veteran attributed his pain at that time to an accident in service in April 1971, when he was admitted to a military hospital for the injury but was denied further treatment for his injury. Dr. Pugliese noted that he and Dr. Chen treated the Veteran for his severe back pain and the diagnosis was degenerative lumbar disc disease at L4-L5 with radiculopathy. Dr. Pugliese noted that the Veteran then had a work-related accident in 1992 and incurred a cervical spine injury, for which he was treated with a C5-C6 fusion; he returned to work but continued seeking treatment for lower back pain due to the injury in service. Dr. Pugliese opined that the Veteran's C5-C6 cervical injury is not related to the L4-L5 radiculopathy disease. Dr. Pugliese noted that the Veteran was again injured on the job in 1996 when his foot slipped on a soda can and caused a severe ankle sprain; Dr. Pugliese opined that this injury is also not related to the L4-L5 lower lumbar disc disease. Dr. Pugliese stated that the Veteran had received back treatment from himself and Dr. Chen from April 1991 to September 1996 for the injury that occurred in service in April 1971. He opined that the low back injury the Veteran sustained in service had caused degenerative disc disease as well as radiculopathy and caused the disability he continues to suffer with to this day; he opined that the disability was not due, or related to, the work-related injuries that occurred in 1992 and 1996. In a May 2013 medical opinion statement, Dr. Leszczak noted that he had been treating the Veteran since 2002, mostly for ongoing lower back pain and neck pain. The diagnosis after seeing several different spine specialists was lumbar radiculopathy and lumbar degenerative disc disease caused initially by the fall in 1971 while on active duty service. Dr. Leszczak stated that he had reviewed the Veterans STRs and civilian medical history and records and noted the April 1971 injury as well as the Veteran's ongoing complaints of lower back pain since, according to the medical records. He noted that the Veteran sought care for his lower back pain from different chiropractors for many years so he was able to function despite ongoing pain and discomfort. Dr. Leszczak noted the medical opinions of record as well as the history of work-related injuries in 1992 (in which he fell and sustained a neck injury) and in 1995 (in which he sustained a right ankle sprain). He noted that the Veteran continued to work until 1999, when he went on disability due to ongoing lower back pain and increasing difficulty in functioning. He noted Dr. Pugliese's statement and opined that it further supports the fact that the Veteran's back disability is due to the injury he sustained in service in 1971 rather than the injuries he later sustained in 1992 and 1996 while working for the Chicago Transit Authority. Based on a review of the complete medical history as well as treating the Veteran for many years, Dr. Leszczak concluded that it is more likely than not that the Veteran has degenerative disc and spine disease caused by his fall from a high bunk bed while on active duty service 1971, with severe back injury, which resulting in his progressive and debilitating condition. He opined that the accidents the Veteran incurred while employed with the Chicago Transit Authority did not have much impact on his back disability. He opined that the Veteran is disabled both physically and mentally due to trauma he suffered while in service in April 1971. Social Security Administration records reflect that a May 1998 decision granted the Veteran entitlement to disability benefits beginning in January 1997, due to a primary diagnosis of disorders of the back (discogenic and degenerative) and a secondary diagnosis of affective/mood disorders. The Board finds that there is ample documentation of ongoing low back problems from the time the Veteran left service, caused by the April 1971 injury in service. The Veteran has submitted lay statements regarding a chronic low back disability that first manifested in service, and the Board finds these statements highly credible as they correlate with reports and findings noted in service. The VA and private examiners have consistently diagnosed the Veteran with degenerative joint disease of the lumbar spine, and several medical opinions of record relate the current back disability to the April 1971 injury in service, with sufficient explanation as to why the two post-service work-related injuries in 1991/1992 and 1996 did not cause the current low back disability. Accordingly, the evidence reasonably shows that the Veteran has a chronic low back disability that was first manifested in service, and as shown by VA and private treatment records, credible lay testimony, and VA diagnosis, continues to the present time. See 38 C.F.R. § 3.303(b). All of the requirements for establishing service connection are met; service connection for a variously diagnosed low back disability is warranted. ORDER Service connection for a low back disability is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs