Citation Nr: 1339269 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 10-45 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Charles D. Romo, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from 1974 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2012, the Veteran testified at a video conference hearing. A transcript of the hearing is of record. This appeal was processed using the Virtual VA paperless claims processing system. FINDING OF FACT The evidence is at least in equipoise as to whether a low back disability is related to service. CONCLUSION OF LAW A low back disability was incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5701 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran testified that when he fell off a truck during service, he primarily injured his wrist, but that he hurt his back too. He has had back problems since service. (See April 2012 Hearing Transcript p., 3). Weighing all doubt in his favor, the evidence is at least in equipoise as to whether the Veteran's low back disability is related to service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d) (2013). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In order to establish a showing of chronic disease in service, or within a presumptive period per § 3.307, 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," is required. 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. Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third service connection requirements to link a current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court); however, clarified that continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Degenerative joint disease, i.e., arthritis, is one such condition considered chronic, although degenerative disc disease (DDD) is not. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). The service treatment records (STRs) reflect numerous entries for complaints of low back pain and a diagnosis of low back muscular spasms. A January 1974 STR noted normal spine. In the notes section, lower back pain was listed as "LBP" and then was crossed off. A January 1974 Report of Medical History showed no complaints of recurrent back pain. A June 1976 STR, however, mentioned complaints of lower back pain. A November 1976 STR noted complaints of lower back pain. A January 1977 STR noted a 7-month history of non-radiating intermittent lower back pain. There were no paraspinal spasms or sensory deficit. A January 1977 Report of Medical History reflects that the Veteran complained of "recurrent traumatic back pain since June 1976." The January 1977 Report of Medical examination noted recurrent back pain. A February 1977 Report of Medical History noted no complaints of recurrent back pain. The Veteran stated that he was in "good health." A June 1976 STR noted complaints of low back pain for two days. Upon physical examination, the Veteran had abnormalities/discoloration and muscle spasms. He was diagnosed with muscular spasms. A July 1975 STR noted that the Veteran fell off a truck at Fort Hood and injured his left wrist. A February 1977 reflects complaints of back pain. A January 1977 STR noted x-ray of the lumbar spine with no objective findings. A February 1977 separation examination noted normal spine. Private treatment records dated from December 2003 to December 2004 reflect complaints of and treatment for lower back pain and muscle spasms. A November 2009 x-ray revealed advanced degenerative disc disease (DDD). A December 2009 neurology note stated that the Veteran reported that his back pain history started when he fell off a truck. A November 2009 VA examination reflects complaints of low back pain. The VA examiner reviewed the claims file and noted that the Veteran fell off a truck in July 1975 and was treated for a wrist sprain at that time. X-rays were negative and the Veteran was given conservative treatment, to include Tylenol and range of motion exercises. The Veteran reported he also injured his back while exercising in association with his duties in the military. The Veteran stated that he had progressive pain since his discharge from the military service. The Veteran has worked various labor jobs as a truck driver. The Veteran was diagnosed with DDD of the lumbar spine. The VA examiner stated that the Veteran had a lumbar strain that was identified and treated without any radiographic abnormality during his service. However, given the long period of time between now and his current symptoms and level of DDD by radiographic evidence there could not be a certain link between the two without speculation. He further stated DDD was a common finding within the middle-aged and older population and previous lumbar strain or lumbar spasms do not progress to severe DDD with any reproducibility or certainty. In a February 2012 private nexus opinion, Dr. N. J. stated that he treated the Veteran from October 2009 to December 2009 and that the Veteran provided his medical records from 1976, when he sustained a back injury while in service. He further stated that he reviewed the Veteran's medical records and that it was his opinion that it was likely that the current back pain was due to the lower back injury in service. The Veteran also submitted three notarized statements from his former three wives and current spouse who stated that the Veteran complained of back pain as a result of an in service injury. Specifically, the first wife, who was married to the Veteran from 1974 to 1977, stated that he complained of back pain during service. The second wife testified that he complained of back pain when she met him in 1977. The third wife was married to him from 1990 to 2002 and stated he had back problems during their marriage. The current wife stated that he still complains of back pain from his in-service injury. (See Written Statements dated April 2012 from T.J., M.J., G.J., and J.T.). The November 2009 VA examination is afforded less probative value than the private opinion because the examiner provided a non-opinion when he stated that "given the long period of time between now and his current symptoms and level of degenerative disk disease by radiographic evidence there could not be a certain link between the two without speculation." The legal standard is "preponderance of the evidence" not "certain." The February 2012 private nexus opinion statement is afforded higher probative value than the November 2009 VA examination as it is the only medical evidence of record that provides an opinion on causation, which is supported by the Veteran's STRs, treatment records, and lay statements. The statement was made after a review of the relevant evidence, including past examinations of the Veteran. There is no competent evidence of record in conflict with the private opinion. The Veteran is currently diagnosed with lumbar strain/ muscle spasms, which is consistent with his diagnosis of muscle spasms during service and documented injury. Resolving all doubt in favor of the Veteran, service connection for a low back disorder is warranted. ORDER Service connection for a low back disability is granted. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs