Citation Nr: 1414961 Decision Date: 04/04/14 Archive Date: 04/11/14 DOCKET NO. 07-21 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service from May 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which declined to reopen the Veteran's previously denied claim for service connection for a low back disability. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in April 2008. A copy of the hearing transcript has been associated with the claims file. The Board then remanded the claim for additional development in November 2008. After completion of that development, the Board affirmed the RO's decision to not reopen the claim in an August 2011 decision. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In a March 2013 memorandum decision, the Court vacated the Board's decision and remanded the matter back to the Board for further adjudication. In October 2013, the Board reopened the Veteran's claim and remanded it for further development. That development has been completed, and the case returns to the Board for further review. This appeal was processed as part of the Veterans Benefit Management System (VMBS). The Veteran's Virtual VA file was also reviewed. FINDING OF FACT The Veteran's current degenerative disc disease is etiologically related to a lumbar strain in service. CONCLUSION OF LAW The criteria for service connection for a low back disability have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2013). In this case, the recent December 2013 VA examination confirms a diagnosis of degenerative disc disease. Therefore, element (1) for service connection has been met. Service treatment records show the Veteran complained of a low back injury in December 1970. In subsequent statements and testimony, the Veteran stated that his injury occurred while lifting a pallet. Therefore, element (2) has also been met. With respect to element (3), a nexus between the in-service injury and the current disability, the relevant history must be reviewed. As noted above, the Veteran complained of a low back injury in December 1970, but no specific diagnosis was rendered. A January 1971 separation examination noted no abnormalities. The Veteran first filed a claim for benefits in 1984, and submitted a June 1984 treatment record showing a diagnosis of a left side sacroiliac lesion. Additional records from January 1987 show the Veteran sought treatment for a back injury that occurred in June 1986 when the Veteran tried to clean mud out of the tracks of a bulldozer. He subsequently developed severe pain in his low back. He was diagnosed with facet arthritis at L4 and L5, with possible stenosis and a possible herniated disc at L4 and L5. While being treated for this injury, the Veteran reported that he had also injured his back in service, but that he did not need treatment for that injury and "basically it had improved by itself." Additional records from January 1987 show the Veteran reported a history of back pain since the June 1986 work injury. In support of his claim, the Veteran submitted June 2002 opinion from Dr. H.M.G., which stated that the Veteran had chronic back pain that began as a result of lifting a pallet in service. However, this opinion contains no further explanation or rationale, and does not address the Veteran's 1986 work injury. The December 2013 VA examiner concluded that the current degenerative disc disease was less likely than not related to the back injury in service. He stated that there was substantial proof that the 1970 back problem resolved before leaving service, citing to the normal separation examination in 1971 and the Veteran's 1986 statements that his military back injury had resolved well before the 1986 work injury. He further stated that the 1970 injury was a time limited, self-resolving soft tissue strain, and that his current degenerative disc disease was most likely caused by his post-military employment and lifestyle choices. However, the VA examiner erroneously stated that the work-related back injury in 1986 was the first documented instance after 1970 where the Veteran's back was treated. As noted above, there is a June 1984 treatment record (two years earlier) showing a diagnosis of a left side sacroiliac lesion. In view of the foregoing, the Board finds that the evidence is in equipoise concerning the matter of whether the Veteran's current low back disorder is related to his in-service back injury in December 1970. Therefore, service connection for a low back disorder is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a low back disability is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs