Citation Nr: 1336667	
Decision Date: 11/12/13    Archive Date: 11/22/13

DOCKET NO. 12-06 075	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease and degenerative joint disease. 


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

T. Carmichael, Associate Counsel






INTRODUCTION

The Veteran served on active duty from September 1996 to September 2005 with additional Reserve service. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO), which denied service connection for degenerative disc disease of the lumbar spine. 


FINDING OF FACT

The Veteran has degenerative disc disease and degenerative joint disease of the lumbar spine, which is attributable to his active service.


CONCLUSION OF LAW

The Veteran has a lumbar spine disability that was incurred in active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R.       §§ 3.102, 3.159, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 


Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

To the extent that the action taken below is favorable to the Veteran, further discussion of the VCAA is not required. 

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, 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 establish direct service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

If a chronic disease, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R.      §§ 3.307, 3.309. 

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. Additionally, medical nexus evidence demonstrating an etiological link is not necessary to establish service connection when evidence, regardless of its date, shows that a veteran had a chronic condition in service, and that he still has the same chronic condition. Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008). See also 38 C.F.R. § 3.303(b). 

Competent medical evidence means 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 mean 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). 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 

The Veteran has been diagnosed with degenerative disc disease and degenerative joint disease of the lumbar spine. Service treatment records (STRs) are replete with complaints and treatment for back pain and injuries during active service. In September 1999, the Veteran's wife contacted the Family Practice Clinic on base and reported that "every so often [the Veteran's] back goes out to where he has to lay on the floor." In April 2001, the Veteran reported recurrent back pain. In July 2001, the Veteran was seen for "low back pain occurring over the last week with feelings of numbness and tingling to lower extremities, pain began while wearing an 80lb suit during an exercise." The Veteran was prescribed rest, stretching, Motrin, and Flexeril. In September 2001, the Veteran was seen for pain in his upper back, just left of his spine. The doctor noted mild tenderness in the paraspinous area, maximal in the rhomboid region and probably rhomboid strain. The Veteran was again prescribed rest, stretching, Motrin and Flexeril. In February 2004, the Veteran complained of low back pain due to "lifting a bomb on Tuesday." In December of 2004, the Veteran complained of low back pain and was counseled on proper stretching. At the June 2005 separation examination, the Veteran reported he was taking Motrin and that he had hurt his back several times during service. 

The post-service evidence reflects that the Veteran did not seek treatment for back pain until February 2010, when he sought treatment from the Eglin VA Community Based Outpatient Clinic. 

The Veteran underwent VA examinations in November 2009 and January 2012.  While both examiners found that the Veteran had lumbar spine degenerative disc disease and degenerative joint disease, they also essentially found that these disorders were not caused by active military service because of the lack of symptoms, and resulting continuous treatment since the Veteran's discharge. 

However, the Veteran has argued that his symptoms have been continuous. While the Veteran may not have sought treatment, there is no evidence to countervail his report of continuous symptoms. Such continuous complaints and treatment in service reflects more than an "isolated" finding of a lumbar spine condition; it is suggestive of a chronic condition, requiring repeated treatment. 38 C.F.R. § 3.303(b). 
 
The Veteran is also competent to report symptoms of lumbar spine pain during and after his military service. Layno, 6 Vet. App. at 469; see also 38 C.F.R. § 3.159(a)(2). Thus, his statements as to the onset and frequency of his back pain are competent and credible, and are of significant probative value. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).

There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim, but such would not materially assist the Board in this determination. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet.App. 52 (1993); see also Massey v. Brown, 7 Vet.App. 204 (1994). 

The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied and service connection for a lumbar spine disability will be granted. See Alemany v. Brown, 9 Vet.App. 518 (1996); Brown v. Brown , 5 Vet.App. 413 (1993).

The Board expresses no opinion on the severity of the disorder. The RO will assign an appropriate disability rating. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). 




ORDER

Service connection for a lumbar spine disability, to include degenerative disc disease and degenerative joint disease, is granted. 



____________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs