Citation Nr: 1336862 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 10-20 055 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for residuals of a low back injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from March 1965 to July 1965, with reserve service prior to and after this service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in in New Orleans, Louisiana. The Veteran presented testimony at a video-conference hearing chaired by a Veterans Law Judge in October 2011. Pursuant to 38 C.F.R. § 20.707, this matter was remanded for a new hearing in September 2012 following the retirement of the Veterans Law Judge who presided over the October 2011 video-conference hearing. In February 2013, the Veteran testified during a video-conference hearing before the undersigned Veterans Law Judge. Transcripts from both hearings have been associated with the record. The Board has reviewed the Veteran's physical claims files, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. The Veteran has a current diagnosis of degenerative joint disease in the lower back. 2. A low back disability was not "noted" at entry and the evidence of record does not clearly and unmistakably demonstrate that a low back disability preexisted service. 3. The Veteran sustained a low back injury during active duty. 4. Residual symptoms of a low back injury have been continuous since service separation. 5. The Veteran's current degenerative joint disease is related to his low back injury in service. CONCLUSION OF LAW The criteria for service connection for residuals of a low back injury have been met. 38 U.S.C.A. §§ 1110, 1111, 1113 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303(b), 3.304(b), 3.309(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The claim of service connection for residuals of a low back injury has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no prejudice to the Veteran could result from this decision, and further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Merits of the Claim The Veteran has presented alternative theories to relate his current low back disability to a low back injury he sustained in service. First, the Veteran contends that his current low back disability was caused by low back injuries he sustained during active duty, including a fall from a truck and strain on his lower back from physical training. Alternatively, the Veteran suggests that his current back disability is the result of aggravation, caused by the same injuries, to a back condition that pre-existed service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran 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, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Degenerative joint disease - a form of arthritis - qualifies as a "chronic disease" under 38 C.F.R. § 3.309(a). See Dorland's Illustrated Medical Dictionary 1344 (32d ed. 2012) ("degenerative joint disease", "osteoarthritis," and "degenerative arthritis" are interchangeable terms). A veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except (1) as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or (2) where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1131, 1132, 1137; 38 C.F.R. § 3.304(b). Only such conditions as recorded in examination reports are to be considered as "noted," and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception. See 38 C.F.R. § 3.304(b); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). Where the disease or injury at issue is not noted at the time of the examination, acceptance, and enrollment for service, the veteran is presumed to have been in sound condition. See 38 U.S.C.A. §§ 1131, 1132, 1137; 38 C.F.R. § 3.304(b). The presumption of soundness is rebutted when VA shows by clear and unmistakable evidence (1) that the injury or disease existed prior to service and (2) that pre-existing injury or disease was not aggravated by service. Id.; see also VAOPGCPREC 3-2003. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, 7 Vet. App. at 506. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Initially, the Board finds that the Veteran has a current diagnosis of degenerative joint disease. The condition was diagnosed during a December 2011 VA spine examination. Specifically, the examination report details degenerative joint disease with radiculopathy, first diagnosed in 2011. Diagnostic testing confirmed arthritis in the thoracolumbar spine. The Board also finds that a low back disability was not "noted" at the time of the Veteran's examination, acceptance, and enrollment for military service. The Veteran was examined for service entrance in March 1965. The examination record states that the Veteran was "examined this date and found physically qualified for active duty. No significant change in member's health since last physical examination." An accompanying entry signed by the Veteran states, "a complete physical phiscal [sic] examination has been conducted within the precedding [sic] 12 months. There has been no sigifant [sic] change in my physical condition." The examination within the previous 12 months - a November 1964 application for hardship discharge (from reserve duty) - included a clinical evaluation of the Veteran's spine. The box for an "abnormal" evaluation is checked, however, the accompanying notes dissuade the Board from finding that a low back condition was "noted" on this examination. Specifically, the service examiner conveyed three factors for consideration. First, the examiner found full range of motion and strength in the cervical, dorsal, and lumbar spine. Second, the examiner reported that the "alleged prior disability has completely subsided." Third, the examiner noted that the Veteran's present spinal condition was "NCD," or not considered disabling. Each of these considerations tends to support the conclusion that there was no abnormality of the Veteran's spine at service enlistment. Collectively, these considerations outweigh the "abnormal" clinical evaluation of the Veteran's spine. As a result, the Board finds that a preponderance of the evidence supports finding that a preexisting back disability was not "noted" at entry. Additionally, the Board finds that the evidence does not clearly and unmistakably demonstrate that a low back disability preexisted service. In reaching the conclusions above, the November 1964 service examination addressed an accompanying November 1964 report of medical history completed by the Veteran. In that report, the Veteran disclosed that he was being treated by Dr. Salatich for neck and back injuries. No additional information regarding the current symptoms was provided in the report. In a December 1964 letter, Dr. Salatich describes the course of the Veteran's back injuries and treatments following an October 1963 automobile accident. Dr. Salatich treated the Veteran from November 1963 to November 1964. A total of three impressions were conveyed in the letter including whiplash type cervical syndrome, whiplash type lumbosacral syndrome, and cerebral concussion (short duration). Significantly, Dr. Salatich's December 1964 shows that radiographic studies conducted between November 1963 and November 1964 did not reveal any bony abnormality or pathology following the October 1963 automobile accident. Service examiners in November 1964 and March 1965, made aware of the October 1963 automobile accident, found that any back conditions pre-existing service enlistment had "completely subsided" and were not considered disabling. Thus, even though an April 1965 service treatment record describes how the Veteran's back condition (described below) "definitely [existed prior to enlistment]," the record does not clearly and unmistakably show that this disability preexisted service. As a result, the Veteran is presumed to have been in sound condition when he was enlisted for active service in March 1965. See 38 U.S.C.A. §§ 1131, 1132, 1137; 38 C.F.R. § 3.304(b). Next, the Board finds that the Veteran injured his lower back while in service. In April 1965, the Veteran was admitted to the U.S. Naval Hospital in Charleston, South Carolina with a lumbosacral strain diagnosis. Once admitted, hospital examiners observed paravertebral lumbar muscle spasm with diffuse lumbar tenderness. The June 1965 hospital transfer record includes a service physician's opinion that, in light of the Veteran's October 1963 automobile accident, the Veteran "probably developed a degenerated L5 disc with intermittent symptoms." Other than this note, service treatment records do not specifically identify an injury or event that caused the immediate onset of the low back muscle spasm documented in April 1965. However, the Veteran has identified three contributing causes not related to pre-existing pain. First, the Veteran has testified that his physical training routine involved frequent strain on his lower back. See February 2013 hearing transcript p. 7-8; October 2011 hearing transcript p. 6. Second, the Veteran described a fall from a truck during his active duty period. See December 2011 VA spine examination report; October 2011 hearing transcript p. 9; April 2010 notice of disagreement; July 2009 VA Compensation & Pension examination report. Third, the Veteran has stated that he was assaulted while in service. According to the Veteran, this assault injured his back. See e.g. February 2013 hearing transcript p. 10-12; October 2011 hearing transcript p. 9-11. Here, the Board notes that the Veteran became service-connected for posttraumatic stress disorder in October 2009 based on an in-service stressor of personal assault. See October 2009 RO rating decision. In each of the instances above, the Veteran is competent to describe the events that lead to a back injury. See Layno, 6 Vet. App. at 470 (a veteran is competent to provide evidence of facts and circumstances that can be observed and described by a lay person). Further, the Veteran's statements regarding each of these injuries has been consistent over several years and through different formats including video-conference testimony, submitted statements, and medical treatment. The Veteran has been forthcoming about his October 1963 automobile accident prior to, during, and since service enlistment. In consideration these factors, the Board finds the Veteran's accounts of in-service back injury to be credible and probative. Thus, the Board finds that the weight of the lay and medical evidence establishes an in-service low back injury. Finally, the Board finds that the Veteran had continuous symptoms of a low back condition after service. In the April 2010 VA Form 9, the Veteran stated that "since the military issue/incident [the lower back injury] has remained a 'chronic' condition." Similar sentiments were conveyed to express continuity of symptoms since service during hearings before the Board in February 2013 and October 2011. See February 2013 hearing transcript p. 8; October 2011 hearing transcript p. 13. In an August 2010 letter, the Veteran's representative reported that the Veteran sought medical treatment from discharge through the current time period, but that the records prior to 2000 cannot be produced because records over 10 years old are generally not kept by private medical doctors. Additionally, friends of the Veteran shared their observations of the Veteran before and after service in a series of four letters submitted in January and February 2010. Each letter indicates that the Veteran returned from service with a limp and the two friends who commented on more recent manifestations of the Veteran's limp said that the Veteran is "still bothered with his back" and that the limp has become "more [and] more noticeable." The Veteran also stated that "there have been no intercurrent causes/events" that have impacted his low back. See April 2010 VA Form 9. This statement is bolstered by a comprehensive review of the Veteran's VAMC records, which reveal no significant injuries to the back. As discussed above, the Board finds that the Veteran is a credible witness. Further, he is competent to relate experiencing back pain since service. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (a veteran is competent to testify regarding continuous knee pain since service). Thus, in consideration of the foregoing evidence, the Board finds that the residual symptoms of the Veteran's low back injury in service have been continuous since service separation. As such, the Veteran is entitled to service connection on a presumptive basis. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338-40. ORDER Service connection for residuals of a low back injury is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs