Citation Nr: 1414510 Decision Date: 04/03/14 Archive Date: 04/11/14 DOCKET NO. 12-25 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. de Jong, Associate Counsel INTRODUCTION The Veteran (appellant) served on active duty from March 1961 to September 1965 and from September 1967 to January 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the RO in St. Petersburg, Florida, which denied the above claim. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" and VBMS systems to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's back disability is related to his active service. CONCLUSION OF LAW The criteria for service connection for a back disability have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran asserts that he is entitled to service connection for a back disability, manifested as degenerative disc disease of the lumbar spine, as symptoms of this disability began following an in-service injury and have continued to the present. For the reasons that follow, the Board finds service connection is warranted. 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; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The medical evidence of record shows the Veteran has a current diagnosis of degenerative disc disease of the lumbar spine. The first element of his service connection claim is met. In the Veteran's March 2010 Notice of Disagreement, he reported that he began experiencing chronic back pain after a February 1971 near-crash landing of his Coast Guard aircraft. The Veteran reported that he was "grounded" from flight duty for several periods during his Coast Guard service due to his back problems and the medications he was taking for back pain relief. The Veteran also reported that in 1980 or 1981 he was sent by his unit's flight surgeon for a neurosurgery consultation at Homestead Air Force Base. He stated that the neurosurgeon there recommended a fusion operation of the L4 and L5 vertebrae. The Veteran reported that he declined to undergo the operation after learning about the possible consequences of the surgery and of the poor outcome his colleague had following the same operation. In his statement, the Veteran detailed the history of his treatment for back pain by various physicians and chiropractors since his separation from service, and stated that he wished to demonstrate the continuous chain of symptoms of and treatment for his back disability from the time of the incident in 1971 to the present. In his September 2012 substantive appeal, the Veteran reported that he had been taking methadone for his back pain for many years. He reported that he had begun using a walker, and stated that this was due to the increasing severity of his back disability over the years. The Veteran stated that he believed his back disability began following the February 1971 near-crash landing and was aggravated by his 16 years of flying helicopters as a Coast Guard pilot. The Veteran's service treatment records show that the Veteran complained of and was treated for low back pain on multiple occasions. February 1981 treatment records show the Veteran complained of recurrent low back pain and was diagnosed with thoracic back strain and prescribed a muscle relaxer. March 1981 records show continued treatment of the Veteran's back pain and note improvement in his condition. However, September 1981 service treatment records show the Veteran again presented with complaints of low pain back, which was radiating into his lower extremities. The provider noted swelling around the sacroiliac joints and noted the Veteran's pain in the lower lumbar region was extreme. The Veteran was diagnosed with severe low back strain, and subsequent records show he underwent treatment including whirlpool therapy and medication, and was grounded from flying. July 1981 treatment records show the Veteran was re-evaluated for chronic back pain, but refers to the area around the C5 and C6 vertebrae. The Board notes the Veteran is already service-connected for a cervical spine disability, and the references in his service treatment records simply to "back pain," without distinguishing between cervical and lumbar spine, may have created some confusion. The July 19, 1982 treatment record that indicates the Veteran's back strain had resolved appears to refer to the cervical spine, not the lumbar spine. On the Veteran's August 1982 retirement examination, he reported having a chronic back problem for many years and indicated that he had recurrent back pain. The Veteran's service treatment records show he complained of and was treated for symptoms of a low back disability on several occasions during service. The second element of his service connection claim is satisfied. The Veteran was afforded a November 2009 VA examination to evaluate his back disability. On examination, the Veteran reported that his chronic back pain had started after a hard landing of his Coast Guard aircraft, and that the pain had been constant since that incident. The examiner noted that back problems were not indicated on either the Veteran's Air Force or Coast Guard enlistment examinations. The examiner also noted that back problems were not indicated on the Veteran's 1982 retirement examination. However, as noted above, back problems were clearly indicated on the August 1982 retirement examination and thus the examiner's statement appears incorrect. The examiner noted the Veteran repeatedly sought treatment for recurrent back pain and sciatica during service, receiving a diagnosis of lumbo-sacral strain with myositis in 1981 and 1982. The examiner noted the July 19, 1982 treatment record, which indicated the Veteran's back strain had resolved. However, as discussed above, this treatment record appears to be referring to the back strain the Veteran suffered in his cervical spine, not his chronic low back pain. The examiner opined that the Veteran's current degenerative disc disease of the lumbar spine was less likely than not related to service. The examiner based his opinion on the July 19, 1982 treatment record, as well as the fact that degenerative disc disease of the lumbar spine was not documented in service. The Board finds the VA examiner's opinion to be both competent and credible, but of little probative value. The VA examiner appeared to rely heavily on the July 19, 1982 treatment record in formulating his opinion. However, a review of the evidence in detail appears to show this particular treatment record was not, in fact, referring to resolution of the Veteran's chronic low back pain. Furthermore, the examiner did not address the Veteran's report of an in-service injury, following which he experienced continuous low back pain, and instead relied on the absence of documentation of lumbar degenerative disc disease in the Veteran's service treatment records to formulate his opinion. The Board notes an examination is inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service treatment records to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board finds the Veteran's consistent reports of back pain which began following a near-crash landing in 1971 and has continued to the present to be both competent and credible. Although as a layperson, the Veteran is not competent to diagnose a complex medical condition such as degenerative disc disease, he is competent to report his in-service experiences, as well as the symptoms of his back disability that he has suffered from his time in service to the present. The Veteran has also submitted statements and treatment records from various private physicians, which show the Veteran's descriptions to his treating providers of the onset and duration of his back disability symptoms. These statements show the Veteran has consistently reported that his symptoms began during service and have persisted to the present. The Board finds the Veteran's statements regarding the onset and duration of his back disability symptoms carry significant probative weight. The preponderance of the competent and credible evidence of record indicates the Veteran began to experience symptoms of his current back disability during service, and has continued to experience these symptoms from service to the present. Accordingly, the third element of his service connection claim is met and the claim must be granted. II. Duties to Notify and Assist The Veteran's claim of entitlement to service connection has been granted. As such, the Board finds that any error related to the duties to notify or assist on that claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013); Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). ORDER Entitlement to service connection for a back disability is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs