Citation Nr: 1340786 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 12-16 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968, and from September 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT Resolving reasonable doubt in favor of the Veteran, his current low back disability, diagnosed as multilevel degenerative changes with grade I minimal retrolisthesis, cannot be reasonably separated from his active duty military service. CONCLUSION OF LAW The criteria for service connection for a low back disability, diagnosed as multilevel degenerative changes with grade I minimal retrolisthesis, have been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the favorable decision as it relates to the grant of entitlement to service connection for a low back disability, discussion of the notice and assistance provisions of the Veterans Claims Assistance Act of 2000 (VCAA) is unnecessary. 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). Service connection may be established for disability resulting from personal injury or disease incurred in the line of duty in active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). The Veteran served on active duty in the Army from September 1966 to September 1968, and from September 1990 to April 1991. His report of separation, Form DD 214, revealed that he served in Southwest Asia in support of Operation Desert Shield/Desert Storm from October 1990 to March 1991. A review of his service treatment records was silent as to any complaints or diagnosis of a low back disability. Post service treatment reports, beginning in December 1993, reference the Veteran's ongoing complaints of low back pain. A December 1993 VA treatment report noted his two year history of low back pain. X-ray examination of the lumbar spine, performed at that time, revealed an impression of narrowing of the L4-L5 innerspace, which was suggestive of disc degeneration. An Agent Orange examination, performed in December 1993, noted the Veteran's complaints of pain across the sacroiliac joints with flexion. It also noted that he has had low back pain for the past two years. More recently, a March 2010 x-ray examination of the lumbar spine revealed an impression of multilevel degenerative changes with grade I minimal retrolisthesis. In March 2010, a medical opinion letter was received from the Veteran's private physician, C.G., D.C. In the letter, Dr. C. opined that the Veteran's current low back condition was likely caused by his military duties, including travelling for 12 hours a day in a Humvee. In March 2010, the Veteran submitted his present claim seeking service connection for a low back disability. He attributed this condition to his 12 hour days of driving in a Humvee during his military service. In April 2010, the Veteran submitted a statement indicating that he started to have trouble with his lower back while stationed in Iraq. He reported that this condition continued to worsen over time as his unit moved into Iraq. In July 2010, the Veteran submitted statements from three fellow service members, G.S., J.R., and M.S. Each service member reported the Veteran's inservice complaints of low back pain while serving in Southwest Asia. G.S., the Veteran's platoon sergeant, further indicated that the Veteran was walking somewhat sideways due to back pain, and that he was the first to be relieved to go home due to his pain. In February 2012, a Disability Benefits Questionnaire (DBQ) medical opinion was obtained. Following a review of the Veteran's claims file, the DBQ examiner opined that It was less likely than not that the Veteran's claimed low back disability was caused by his military service. In support of this opinion, the DBQ examiner noted that there was no supporting information to allow for an opinion of substantiation the Veteran's claim. After reviewing the evidence of record, the Board finds that the Veteran's current low back disability, diagnosed as multilevel degenerative changes with grade I minimal retrolisthesis, was incurred during his military service. In making this determination, the Board finds the statements submitted by the Veteran and his three fellow service members to be credible. Specifically, the Veteran reported that he first started to experience problems with his low back while stationed in Saudi Arabia and Iraq. This allegation is further corroborated by the statements submitted by three of the Veteran's fellow service members. In addition, further support is found in the medical treatment reports beginning as far back as December 1993. These treatment reports, dated less than two years after the Veteran's discharge from military service and 10 years before the present claim was filed, noted his two-year history of complaints of low back pain. The reports also include x-ray evidence suggestive of disc degeneration. Standing in contrast to this conclusion is the February 2012 medical opinion offered by the DBQ examiner. The Board, however, finds the probative value of this opinion to be weakened due to its conclusionary rationale. Specifically, the DBQ examiner noted that there is "no supporting information to allow for an opinion of substantiation for this claim." While the DBQ examiner may have reason to cast aside the contentions of four separate service members, the failure to provide any basis for doing so weakens the opinion provided. Resolving all doubt in favor of the Veteran, service connection for a low back disability is warranted. ORDER Service connection for low back disability, diagnosed as multilevel degenerative changes with grade I minimal retrolisthesis, is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs