Citation Nr: 1336322 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-49 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from April 1968 to November 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which declined to reopen the Veteran's claim. In November 2009, in a Statement of the Case, the RO reopened the Veteran's claim after a de novo review by a decision review officer. The RO then denied the claim for service connection for degenerative disc disease, annular bulging disc, and fact arthropathy of the lumbar spine on the merits. In a November 2011 decision, the Board reopened the Veteran's claim and remanded it for further development, to include a VA examination. The requested action was taken, and there has been substantial compliance with the remand directive. See Stegall v. West, 11 Vet. App. 268 (1998), see also Dyment v. West, 13 Vet. App. 141 (1999). The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. FINDING OF FACT The Veteran's currently diagnosed degenerative disc disease of the low back is related to his military service. CONCLUSION OF LAW The criteria for service connection for degenerative disc disease of the low back is met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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; 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a). In this case, the Board is granting in full the benefit sought on appeal with respect to the service connection claim. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Legal Criteria Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection the record must contain: (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, 1167 (Fed. Cir. 2004). 38 U.S.C.A. § 1154(a) requires that the VA give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). III. Analysis The Veteran seeks entitlement to service connection for a low back disorder. The Veteran contends that he injured his back during two separate incidents while in service. On his VA Form 21-526 dated August 1970, the Veteran stated that in January or February of 1969 he had injured his back when he was operating a forklift in Vietnam. He stated that when the load tilted, he tried to adjust it and sprained his back. He then went to sick call and was given painkillers. The Veteran also stated that he occasionally still gets pain in his back and sometimes it lasts for a week and then goes away. In a February 2008 statement, the Veteran also stated that from mid-August to mid-September of 1969, while on convoy from Camp Eagle, Phu Bai to Fire Base Blaze they stopped to adjust the chain binder because it was loose. The Veteran and a few friends tried to tighten the chain binder but could not, so they added a cheater bar. While they were all pulling at the same time, the cheater bar shot off and struck the Veteran in the left forehead, knocking him unconscious. When he regained consciousness, he was on a stretcher waiting to be transported via medivac. While in the hospital (medics hooch), he was told he had a bad concussion and he began experiencing low back pain that ran down his right leg and ever since then he has experienced the same intermittent debilitating low back pain that shoots down his right leg. Service treatment records show that on entrance in April 1968, the Veteran's clinical evaluation revealed normal results, with no notations of any back problems. Records during service do not reveal any diagnosis or treatment for any back disorder, however, the Veteran's separation examination in November 1969 shows that the Veteran checked "yes" in the section asking if he had back trouble of any kind. The Veteran has indicated receiving medical treatment while at Camp Eagle in Phu Bai, Vietnam, and the records were requested from the National Personnel Records Center (NPRC). However, it was determined that the Veteran's clinical records from Camp Eagle in Phu Bai, Vietnam were unavailable for review, despite all efforts being made to obtain them. A VA examination was conducted in September 1970. X-ray reports and physical exam were normal. The Veteran stated that he strained his back in early 1969 when things were slipping off a forklift. The assessment was a history of low back strain. Records from East Metro family practice from July 1997 to September 1997 show the Veteran receiving treatment for low back pain. Records from St. Paul Radiology from December 2007 and January 2008 show indication of severe right L5-S1 neural foraminal stenosis and right leg radicular symptoms. The records also indicate that there was moderate degenerative disc disease at L5-S1. VA treatment records from January 2008 to April 2008 note that while receiving treatment for mental health issues, the Veteran reported some chronic back pain. Treatment records from East Metro Family Practice dated January 2007 to May 2008 show the Veteran receiving treatment for back problems. A December 2007 entry notes that the Veteran injured his back during Vietnam when he was knocked out and not sure exactly when the injury occurred but it had been a problem ever since. He was noted as being positive for pain radiating down into the buttock area the most, and to the leg as well. An MRI report of the lumbosacral spines indicated an abnormal result. A statement from G.W. dated April 2009 stated that he is the Veteran's brother, and that he exchanged letters with the Veteran while the Veteran was serving in Vietnam. In one of the letters, the Veteran told him that he suffered a head and back injury from being hit in the head with the cheater bar on a chain binder, and was knocked off the truck and landed in a heap on his back. He had to be taken via medivac, and also complained about how sore his head and back were. When the Veteran returned home, he complained about the pain in his back, headaches, dizziness and memory problems. Over the years the Veteran's back had continued to flare-up with shooting pains, causing him to be bed-ridden for weeks at times. He also stated that the Veteran had no prior back problems or injuries before Vietnam. A letter from Dr. A.T. in April 2009 stated that the Veteran had been under his care for two decades. Dr. A.T. also stated that the Veteran has intermittent and persistent problems of back pain with intermittent radicular pain into the right leg, and that he had never had any problems with his back or right leg until he was in Vietnam. Dr. A.T. concluded that considering the severity of an impact to cause a concussion and the fact that he never had previous symptoms, he was convinced that the injury to the back and subsequent sciatic pains are directly related to the injury he sustained while in service. A statement from B.S. dated June 2009 indicated that he had known the Veteran for over 50 years and did not remember him ever having back problems or injuries before Vietnam. He received letters from the Veteran sent from Vietnam in which the Veteran told him that he had been injured in an accident when a chain binder became loose. He also said that he spoke with the Veteran about the accident when he returned home and over the years, and that he and the Veteran have worked together on and off and has witnessed when the Veteran's back injury acts up. He also remembered that the Veteran would be bedridden for 3 weeks and more at times due to his back. Additionally, in November 2010, the Veteran was provided an opportunity to set forth his contentions during a videoconference hearing before the undersigned Veterans Law Judge. The Veteran asserted that while in service in Vietnam, he stopped to rebind his load of two or three I beams. He and his friends used a cheater bar to try to gain more ability to tighten the loose chain binder, and when one of the other guys came over he jumped and instead of pulling down, he pulled back, and the cheater bar slipped off the chain binder and the pipe hit the Veteran on the left forehead and knocked him out. The next thing the Veteran remembered was that he was lying on a stretcher and then was medi-vacked but all he could remember was seeing a bump on the palm of his hand. A day or two after the accident he recalled that the pain began to run down his right leg. He stated when he was at the hospital, he didn't say anything about his back pain because he was a "young buck and my back hurt. It was not debilitating, but it hurt." The Veteran also testified that when he returned home in November 1969, he went to seek treatment at the local VA medical center in March 1971. He stated that since service he experiences back pain pretty much all the time, just varying degrees of how much it hurts him. The Veteran also stated that during the time prior to going to the VA medical center, the pain was pretty much there all the time, and about once a week he would have to keep ice on it whenever he could. The Veteran stated that when he filed his claim, he wasn't looking to claim a disability; he was trying to see what could be done to make his back better. He never pursued the claim in 1971 after it was denied because he didn't need help; he just wanted his back to feel better. He also stated that in 1970, the VA medical center had told him to go home and rest and it would probably go away, which the Veteran stated that it didn't. The Veteran also mentioned that he had had injections, takes Tylenol, uses ice on a regular basis, and does exercises for his back. Another statement was submitted by Dr. A.T. in October 2010. He stated that the intermittent and persistent problems of back pain with intermittent radicular pain into the right leg were most likely caused by, or a result of the injury the Veteran sustained in Vietnam during military service. Following the Board's remand in November 2011, the Veteran underwent a VA examination in December 2011. The examiner identified a diagnosis of multilevel degenerative disc disease. He also indicated that the claims file was reviewed. The examiner noted that the file included an account that the Veteran injured his low back while working on a forklift. The Veteran stated that his main low back injury was when he was knocked out by a cheater bar when trying to adjust the beams he was carrying in a tractor trailer. On examination, the examiner indicated that the Veteran had functional loss after repetitive use testing. The contributing factor of disability was noted as pain on movement. The examiner opined that it was less likely as not that the Veteran had a current low back condition that was related to his stated injury in military service. The examiner acknowledged Dr. A.T.'s statement, but then stated that there was not enough documentation in the Veteran's military health record to suggest a significant injury to his low back to cause problems for the rest of his life. He also noted the findings from the 1970 VA examination, and then went on to note that the Veteran's handyman work over the years contributed to the further progression of his current disability. The examiner then stated that most of the Veteran's pain and problems with his low back were associated with his current disability and not any previous back strain while in service, and that there was no documentation of ongoing complaints within the first five to 10 years following service. A statement submitted by G.F. dated March 2010 indicates that he remembered when the Veteran was "injured and medi-vacked." G.F. also stated that he was in Vietnam from December 1968 to December 1969. After careful review, the Board finds that the preponderance of the evidence supports a finding that entitlement to service connection for a low back disability is warranted. A low back disorder, identified as degenerative disc disease, is established by the competent and credible evidence of record. Both the private records from St. Paul Radiology dated January 2007 and the December 2011 VA examination indicate clinical findings of degenerative disc disease. Despite the fact that the Veteran's service treatment records do not reveal any diagnosis or treatment for low back disability and that the Veteran's Camp Eagle records are unavailable, the Veteran did indicate on his separation examination that he had back trouble, which was not noted on entry in April 1968. While the RO indicated that the Veteran had switched contentions, the Board finds that the Veteran has competently reported two separate incidents in service in which he injured his back, and has never indicated that either of the incidents did not occur. The Veteran has provided credible accounts of suffering injuries during service, and the Board notes that his injuries are consistent with the circumstances, conditions, and hardships of his service in Vietnam. There are also buddy statements from G.W., B.S. and G.F. which also corroborate all or various parts of the Veteran's account of his injuries. The Veteran has also competently reported that he has had back problems since separation from service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Although the December 2011 VA examiner did diagnose the Veteran with degenerative disc disease, he was of the opinion that it was not related to the Veteran's injury during service. However, the VA examiner's rationale for his negative opinion does in fact conclude that there is some relationship to service. The examiner stated that his post-service handyman work had contributed to the further progression of his current degenerative disc disease, and that most of his pain and problems, not all, were associated with his degenerative disc disease rather than related to a previous back strain in service. He also noted that there was no documentation of ongoing complaints within the first 5-10 years since service; however, he did not take in to consideration the Veteran's statements when rendering his opinion. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The Veteran's statements contained in the record show that the Veteran had, in fact, complained that he has had back problems since service. Conversely, the Veteran's private doctor, Dr. A.T., provided an opinion that the Veteran's intermittent and persistent problems of back pain with intermittent radicular pain into the right leg are most likely caused by, or as a result of his injury sustained in Vietnam. Because Dr. A.T. has been the Veteran's treating physician for two decades and has knowledge of the Veteran's medical history, he is able to competently and credibly render a medical opinion as to the Veteran's back disorder. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008) (applying the Federal Rules of Evidence to find that the threshold inquiry in evaluating the probative value of a medical opinion is whether the examiner has sufficient facts and data upon which to base an opinion). As the Veteran has been diagnosed with degenerative disc disease and has radicular pain into the right leg, as well as the fact that the Veteran's reported back injuries in service are consistent with the circumstances, conditions, and hardships of his service, and as he has competently and credibly reported continuing back problems since separation from service, the Board concludes that the preponderance of the evidence weighs in favor of his claim that his low back disorder is related to the events of his active service. ORDER Service connection for a low back degenerative disc disease is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs