Citation Nr: 1434590 Decision Date: 08/04/14 Archive Date: 08/08/14 DOCKET NO. 07-13 501 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to service connection for lower back disability. REPRESENTATION Appellant represented by: Eric Gang, Attorney ATTORNEY FOR THE BOARD A.J. Turnipseed INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1977 to May 1982. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2006 rating decision in which the RO denied the Veteran's petition to reopen a claim for service connection for lumbar spine muscle strain. In November 2006, the Veteran filed a notice of disagreement (NOD) as to the denial of his claim. A statement of the case (SOC) was issued in April 2007, and the Veteran subsequently filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2007. In a January 2011 decision, the granted the Veteran's petition to reopen the claim for service connection for a lumbar spine disability (newly characterized as a lower back disability) but remanded the claim on the merits for additional evidentiary development. Thereafter, in October 2011, the Board denied service connection for a lower back disability. The Veteran appealed the October 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2013 Memorandum Decision, the Court set aside the October 2011 Board decision and remanded to the Board the claim on appeal for further proceedings consistent with the decision. The Board notes that, while the Veteran previously was represented by The American Legion, in July 2013, the Veteran granted a power-of-attorney in favor of private attorney Eric Gang with regard to the claim on appeal. The Veteran's current attorney has submitted written argument on his behalf. The Board recognizes the change in representation. The Board notes that, in addition to the paper claims file, the Veteran also has a paperless, electronic files contained on Virtual VA and the Veterans Benefits Management System (VBMS), which are highly secured electronic repositories that are used to store and review documents involved in the claims process. A review of the Virtual VA claims file reveals documents that are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. VBMS includes no records relevant to this Veteran. FINDING OF FACT Competent, credible and probative evidence of record indicates that the Veteran's current degenerative disc and joint disease of the lumbar spine is as likely as not related to in-service injury to his low back. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for lower back disability-namely, degenerative disc and joint disease of the lumbar spine-are met. 38 U.S.C.A. §§ 1110, 1154(b), 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board finds that, given the favorable disposition of the claim for service connection for a lumbar spine disability, all notification and development actions needed to fairly adjudicate this matter has been accomplished. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The Veteran is seeking service connection for a lumbar spine disability, currently diagnosed as degenerative disc and joint disease of the lumbar spine. See March 2011 VA examination. The Veteran has consistently asserted that his current lumbar spine disability was incurred as a result of an injury during service. He has specifically asserted that, while serving in the Navy aboard the USS Alamo, he heard a "pop" in his back after pulling a spring cord to assist in docking the ship to a pier. The Veteran has asserted that he went to sick bay after the injury and has had low back pain since that time. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service treatment records (STRs) show that the Veteran sought treatment for low back pain in November 1977. He complained of pain over the right latissimus dorsi that had been present for one day. Objective examination revealed full range of motion with no abnormalities noted, and the assessment was muscle strain. There are no subsequent complaints or treatment for a low back condition. In fact, the report of the May 1982 separation examination documents that the Veteran's spine was normal on clinical evaluation and he denied having recurrent back pain at that time. Nevertheless, post-service treatment records document that the Veteran has sought treatment for low back pain since approximately 1992 and has consistently attributed his low back pain to injury incurred during service. The Veteran was afforded a VA spine examination in March 2011, at which time he was diagnosed with degenerative disc and joint disease of the lumbar spine. The March 2011 VA examiner opined, however, that the Veteran's low back disability is less likely as not caused by or a result of the activities performed during military service, noting that there was no evidence in the medical record showing that he had an injury with pain referable to the low back. The March 2011 VA examination and opinion are considered competent medical evidence; however, as noted in the Court's Memorandum Decision, it appears that the VA examiner relied upon inaccurate facts in rendering her opinion. Indeed, the VA examiner stated that there is no evidence in the medical record showing that the Veteran had an injury with pain referable to the low back. This statement is inaccurate, as the November 1977 STR shows, as noted, that the Veteran complained of and sought treatment for treatment for low back pain in general, and pain over the right latissimus dorsi specifically. The Board may reject a medical opinion based on an inaccurate factual basis and, given the misstatement of facts in this case, the March 2011 VA opinion is accorded no probative weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board notes that, once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, the Board finds that a new VA examination and opinion are not needed because the Veteran has submitted a competent, credible, and probative medical opinion in support of his claim. In June 2014, the Veteran's attorney submitted a medical opinion from M.C., D.C., who indicated that he is a chiropractic physician who treats thousands of musculoskeletal patients per year, a majority of whom have lumbar spine conditions. Dr. M.C. also reported that he has a history of professional speaking experiences and attends numerous seminars which specialize in the diagnosis and treatment of musculoskeletal injuries, including the lumbar spine. In his May 2014 statement, Dr. M.C. indicated that he reviewed the relevant records, including the service and post-service medical records, and opined that it is as likely as not that the Veteran's injury and onset of low back pain in November 1977 led to his current degenerative disc disease and disability. In support of his opinion, Dr. M.C. noted that the November 1977 service record showed complaints of low back pain, with pain specifically over the right latissimus dorsi muscle. Dr. M.C. explained that the latissimus dorsi muscle aids in the pulling motion, which is the same movement described by the Veteran, and attaches to the spinous process of the T7-L5 vertebrae and iliac crest, which is directly correlated with the degenerative changes currently shown in the Veteran's spine, specifically in T7-T8, T8-T9, L4-L5, and L5-S1. Dr. M.C. further noted the gap of medical care following service but stated that it is as likely as not that the Veteran did not receive the care because he learned to live with his pain like many individuals, further noting that degenerative changes take time to occur, which means the present level of symptoms did not manifest immediately. While not necessary, Dr. M.C. also addressed the misstatement of fact in the March 2011 VA opinion, noting that the lattissimus dorsi muscle directly attaches to both the lumbar spine and iliac crest, which are defined as structures of the low back. The Board accepts Dr. M.C.'s May 2014 opinion as competent, credible, and probative evidence regarding whether the Veteran's current low back disability - specifically diagnosed as degenerative disc and joint disease of the lumbar spine - is related to his military service. It is clear that Dr. M.C. reviewed the Veteran's medical records and he offered a clear conclusion with supporting data, as well as a well-reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Here, Dr. M.C.'s opinion is not contradicted by any medical evidence or opinion of record, as the March 2011 VA opinion has been afforded no probative value and there is otherwise no medical evidence or opinion that directly addresses the conclusions reached by the private physician. Dr. M.C.'s opinion is also consistent with the Veteran's competent report of continued low back pain following service-the veracity of which the Board finds no reason to question. Moreover, while Dr. M.C.'s opinion is not definitive, it has been expressed in terms sufficient to warrant application of the benefit-of-the-doubt doctrine. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, such doubt will be resolved in favor of the claimant. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, given the facts of this case-to include the STRs, the Veteran's competent, credible assertions, and the probative medical opinion discussed above-and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for service connection for a lower back disability-namely, degenerative disc and joint disease of the lumbar spine-are met. ORDER Service connection for degenerative disc and joint disease of the lumbar spine is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs