Citation Nr: 1339259	
Decision Date: 11/29/13    Archive Date: 12/13/13

DOCKET NO.  11-02 862	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, Puerto Rico


THE ISSUES

1.  Entitlement to service connection for residuals of a small pox vaccination.  

2.  Entitlement to service connection for a back disability.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Kalisse Anderson, Associate Counsel 
INTRODUCTION

The Veteran has had multiple periods of active service, including from October 1999 to April 2000 and February 2003 to August 2003.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.  

The Veteran testified before the undersigned Veteran's Law Judge at a January 2013 video hearing conducted at the RO.  A transcript of the hearing is of record and associated with the Veteran's "Virtual VA" file.  

In the Veteran's claim file, there are two statements from the Veteran written in Spanish.  These documents have not been translated, and the Veteran has not been prejudiced by such inaction, as the Board has decided to grant the issues on appeal.  

The Veteran submitted a claim to the RO for hypercholesterolemia in August 2009.  The RO subsequently issued a rating decision on this claim in November 2009.  The Veteran filed a timely notice of disagreement in April 2010 and the RO issued a supplemental statement of the case in December 2010.  The Veteran did not file a substantive appeal (VA 9) within the appellate period and thus this issue is not before the Board at this time.  


FINDINGS OF FACT

1.  The competent evidence of record indicates that the Veteran is diagnosed with degenerative disc disease of the spine that is etiologically related to active service.  

2.  The competent evidence of record indicates that the Veteran is diagnosed with a benign neoplasm of the skin in the left mid-deltoid region, as a result of residuals from an in service small pox vaccination.  

CONCLUSIONS OF LAW

1.  A back disability was incurred in active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).  

2.  Residuals of a small pox vaccination, diagnosed as a benign neoplasm of the skin was incurred in active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Evidence that an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  Disabilities diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the injury or disease was contracted in service.  38 C.F.R. § 3.303(d).  

In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of an in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  

Service connection may also be established by chronicity and continuity of symptomatology.  See 38 C.F.R. § 3.303(b) (2012).  Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496.
Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service.  See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2012).

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).

Back disability 

The Veteran asserts he is entitled to service connection for a back disability diagnosed as degenerative disc disease.  Specifically, the Veteran asserts that he injured his back during his mobilization in 2003 at Fort Bragg.  He asserts that he suffers from back pain and spasms and was treated for these conditions in service and post service.  See January 2013 Hearing Transcript at 4.  

A review of the Veteran's service treatment records indicates that he was treated for back pain and received a 60 mg injection of Toradol to alleviate his symptoms.  See June 2003 Service Treatment Records.  

Available post-service records indicate that the Veteran sought treatment in service for back pain in January 2004 at a VA medical facility and such treatment has continued since 2004.  See January 2004 VA Treatment Records.  In October 2009, the Veteran underwent an MRI of his back.  The MRI revealed dextroscoliosis of thoracic spine and the Veteran was diagnosed with degenerative disc disease by his VA examiner.  See October 2009 VA Treatment Record; see also June 2009 MRI Results from Bioimagenes Medicas.  

Service connection may be established upon a showing of continuity of symptomatology.  See 38 C.F.R. § 3.303(b).  The Board observes the Veteran has reported constant back pain while on active duty, noted in his service treatment records, and he has received continuous treatment for his disability immediately following service discharge.  

As there is competent evidence of an in-service injury, chronicity, and medical evidence of current disability, the Board concludes that entitlement to service connection for a back disability is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

Residuals from Small Pox Vaccination 

The Veteran asserts service connection for residuals from a small pox vaccination received in service.  Specifically, the Veteran asserts that he contracted a skin rash and that a "ball that grew in his upper arm," shortly after receiving the vaccination.  See August 2009 VA Form 21-4138.  

The Veteran received a small pox vaccination during his mobilization at Fort Bragg in March 2003.  See Medical Operational Data System-Individual Medical Readiness Record.  At his hearing, he reported that he began to suffer from a reaction to the vaccine several weeks later as a mass began to grow on his left shoulder.  See January 2013 Hearing Transcript at 3.  

Immediately upon discharge, the Veteran sought treatment for the skin rash and mass that developed on his upper left shoulder at the VA Medical Facility in San Juan.  Id at 4.  During the Veteran's surgery consultation at the VA the examiner noted the following: "slow growing, itchy skin lesion in the left arm, for about one year at the site of smallpox vaccine...."  The Veteran was diagnosed with a benign neoplasm of the skin in the upper left arm.  See July 2009 VA Treatment Notes.  The Veteran testified that he did undergo and excision of the benign neoplasm and has a scar on his upper left arm as a result of the surgery.  He further testified that he is required to treat the scar with a prescribed cream as it itches persistently.  To date the Veteran condition is still being monitored by a VA physician.  See January 2013 Hearing Transcript at 3.  

Based on the above evidence, the Board finds that entitlement to residuals of a smallpox vaccine is warranted.  As there is competent evidence of record that shows (1) the Veteran received a small pox vaccination in 2003 that resulted in a mass growing in his upper left arm; (2) medical evidence of a disability that resulted in surgery and residuals of such surgery, including a scar and persistent itch that requires treatment; and (3) a nexus established by a VA examiner between the Veteran's in-service smallpox vaccination and his current problem, entitlement to service connection for residuals from a smallpox vaccination is granted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

ORDER

Service connection for a back disability is granted. 

Service connection for residuals of a small pox vaccination is granted.  



______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs