Citation Nr: 1512275 Decision Date: 03/23/15 Archive Date: 04/01/15 DOCKET NO. 13-11 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Army from June 1968 to June 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision from the Department of Veterans' Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In a November 2013 decision, the Board reopened the claim currently on appeal and remanded the case to the AOJ for additional development and adjudication. The case has since been returned to the Board for appellate review. As will be discussed below, there was substantial compliance with all remand directives, and the Board may proceed with adjudication. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans' Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. FINDING OF FACT The Veteran's low back disorder, diagnosed as degenerative changes of the lumbar spine, is related to his military service CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, a low back disorder, diagnosed as degenerative changes of the lumbar spine, was incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's service treatment records show that he sustained an injury to his lower back as a result of a jeep accident in January 1969. He was initially documented as having a contusion to the sacrum and tenderness in the sacrococcygeal area following the accident in January 1969. Other records from that month noted that the Veteran had a lumbosacral sprain and described him as virtually asymptomatic. The Veteran reported that he was "black and blue" from below his shoulder blades to his mid thighs. See December 2013 Statement in Support of Claim. The Veteran was evacuated from the 3rd Field Hospital to Japan in January 1969. A January 1969 admission record stated that the Veteran had a lumbosacral strain and documented that x-rays of the pelvis and lower spine were normal. He was hospitalized and treated with bed board, analgesics, physical therapy, and progressive ambulation. The record noted that the Veteran was released to duty without a profile. In February 1969, the Veteran was given a physical profile for limited duty until June 1969 as a result of a lumbosacral strain. On his February 1970 Report of Medical History, the Veteran reported back trouble. The physician's summary stated that the Veteran had been treated for his back trouble and that there was no problem. His corresponding separation examination from February 1970 found his spine to be normal upon clinical evaluation. A March 1970 service treatment record noted that the Veteran had been treated for chronic lumbar pain and that he experienced a gradual resolution of his symptoms with physical therapy. In October 1970, shortly after his separation from service, the Veteran filed his original claim for service connection, stating that he injured his lower back in January 1969. During his December 1970 VA examination, the Veteran reported having low back pain. The examiner observed that the lumbar spine appeared normal with the exception of the straightening of the normal lumbar nerve. No tenderness or muscle spasm was found. The radiographic report stated that the Veteran had a normal lumbar spine. The Veteran was given a provisional diagnosis of a back ache and arthralgia. The examiner noted that he did not find musculoskeletal disease of the lumbar spine. After his discharge from active duty in June 1970, the Veteran testified that he worked in a hotel maintenance position and he explained that this job did not involve lifting. See March 1973 hearing transcript (Tr.), page 4. The Veteran then worked for a railroad company burying cable by digging and using a jackhammer. See Tr., page. 4. On his January 1973 physical examination for employment with the railroad company, the Veteran reported that he had never had back trouble. The Veteran later testified in March 1973 that he did not report the history of his back injury during this examination to avoid hurting his chances of employment. See Tr., page. 5. An x-ray of the lumbosacral spine was normal, and the Veteran was noted as meeting the medical standards for employment after a physical and visual examination. However, in March 1973, a letter from the Veteran's personnel records with this company noted that his employment was terminated during his probationary period. The letter reported that, upon learning of his employment termination, the Veteran claimed that he injured his back in February 1973. The letter also alludes to a medical report from the company's physician, Dr. S., which reportedly indicated that the Veteran had a moderate to severe lumbosacral sprain with disability of seven to ten days. A March 1973 VA medical certificate and history noted that the Veteran had pain in his lower back and a history of back strain for several weeks. The record documented that the Veteran had a paravertebral spasm in the right side of the lumbar spine area. X-ray results were within normal limits. In a March 1973 statement, the Veteran reported that he had experienced back trouble ever since his release from service and that he suffered from muscle spasms that created pressure on his spine. He further stated that Dr. S. told him that his disability was due to the muscle spasms. Two days later during his hearing, the Veteran testified that the condition of his back felt better after in-service treatment, but that the injury recurred during his employment with the railroad company. He detailed that both the nature of the pain and its location were the same as the pain he experienced during service. Tr., page 3-4, 6. After receiving training to become electrician, the Veteran reported that he gave up this career path in 1978 as a result of back pain. See July 2010 Social Security Administration (SSA) record. The Veteran worked as a bar manager from July 1997 to June 2006 and in hotel furniture liquidation from February 2007 to November 2009. See July 2010 SSA record. Both of these jobs involved physical activities that the Veteran had difficulty performing due to his lower back. See August 2010 SSA record. The Veteran believed that the physical labor from these positions permanently worsened his low back disorder. See August 2010 SSA record. In a December 2010 VA treatment record, the Veteran reported that his low back pain began in Vietnam and that he no longer worked as a result of back pain. A December 2010 SSA disability consultation from Dr. H. noted that the Veteran had chronic low back pain which could become severe after twisting and turning. Dr. H. concluded that the Veteran had chronic mechanical back pain with no evidence of radicular extension. In June 2009, a private medical record noted that the Veteran reported that his back had gone out two days before the visit. A December 2010 MRI showed far right disc herniation at L5-S1 and minimal to moderate degenerative changes from L2 to L5. During his December 2010 VA examination, the examiner diagnosed lumbar spine degenerative changes. In January 2010, a VA x-ray of the lumbosacral spine revealed degenerative disc disease at L1-S1 with osteophytic spurring throughout and disc space narrowing at L5-S1. The Board notes that the medical evidence shows that the Veteran has a current disability. The December 2010 VA examiner diagnosed lumbar spine degenerative changes, and the January 2010 VA treatment record also documented lumbar degenerative disc disease. In addition, the evidence of record supports a finding of an in-service injury, as the Veteran's service treatment records extensively document his lower back injury and subsequent treatment. Thus, the remaining issue is whether there is evidence of a nexus between the Veteran's current low back disorder and service. During his December 2010 VA examination, the Veteran reported that his back would go out and he would have muscle spasms after lifting or shoveling. The examiner noted that the Veteran did not report having these episodes during the past five years. After reviewing the claims file and conducting an examination, the VA examiner opined that the Veteran's diagnosed lumbar spine degenerative changes were not caused by or the result of the military or the injury that occurred in 1969. In his rationale, the examiner stated that the Veteran was diagnosed with a lumbosacral strain during service and explained that this type of soft tissue injury is expected to improve over time. In addition, the Veteran's current degenerative changes were consistent with his age and the in-service injury would not cause, contribute to, or aggravate the progression of degenerative changes in the lumbosacral spine. The Board notes the negative medical nexus opinion of the December 2010 VA examiner, but finds it to have limited probative value. The examiner did not discuss the conflicting evidence in the service treatment records showing that, in addition to lumbosacral strain, the Veteran was diagnosed with a lumbosacral sprain and documented as having a contusion to the sacrum. The examiner also did not discuss the Veteran's lay statements in which he maintained that his back problems have persisted since service. A medical examiner's conclusions are of questionable probative value when the examiner fails to consider certain relevant information. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Moreover, in stating that the Veteran did not report any episodes of his back going out over the past five years, the examiner was seemingly unaware of the June 2009 private medical record that noted the Veteran's report of his back going out. The Board must be able to conclude that the medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, due to the flaws in this opinion, the Board does not find it very probative. A VA clarifying opinion was obtained in November 2013 at which time the examiner reviewed the claims file and stated that he could not provide an opinion without resorting to speculation. The examiner indicated that the December 2010 VA examiner's statements regarding the lumbar strain and his assessment that the Veteran's current degenerative changes were consistent with the Veteran's age were correct. The examiner also stated that, based on the available evidence, it was less likely than not that the Veteran's current low back disorder was related to his in-service lumbosacral sprain. However, the November 2013 VA examiner also found that it was problematic that the Veteran had three diagnoses regarding his low back during service. Based on the description of the Veteran's injury after the accident, the examiner stated that the in-service diagnoses might have been incorrect, as it was possible that the Veteran sustained a more significant soft tissue injury to his annular disc, muscles, and ligaments of the back. The examiner explained that such an injury would not be visible through normal imaging. The examiner also noted that the Veteran's reports of ongoing back problems lent support to the theory that he suffered significant trauma. The examiner additionally stated that a significant trauma of this nature could aid in the advancement of degenerative disc disease. As the appropriate imaging was not conducted in the 1960's or early 1970's, the examiner noted that it was impossible to confirm whether the Veteran had this type of injury. Thus, despite the examiner's conclusion that the he could not provide an opinion without resort to speculation, the examiner did provide a substantial rationale that would tend to support the Veteran's claim that his current back disorder is related to his military service. The Board finds that the Veteran has provided competent and credible statements that his symptoms of low back pain have continued since his discharge from service. The Veteran is competent to describe the onset and continuation of his low back pain, as pain is an observable symptom within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). It is clear from the evidence of record that the Veteran has demonstrated a continuity of symptomology since his discharge from service. Only four months following his date of separation in June 1970, the Veteran filed a claim for service connection for his low back disorder, and he reported low back pain during his December 1970 VA examination. Although the Veteran testified in March 1973 that his injury "recurred" in 1973 after working a railroad company, he also stated that he had a minor back ache at the time of his physical before his employment began. Tr., page 5. Only two days before his March 1973 testimony, the Veteran stated that he had experienced back problems since service. See March 1973 Statement in Support of Claim. He added that he began to feel severe pain during his employment. In this statement, the Veteran also reported that Dr. S., the company's doctor, told him that his disability was due to muscle spasms. Thus, the Veteran indicated that his employment only served to worsen his already present symptoms of back pain. These statements are consistent with other statements that the Veteran has made regarding continuous back problems since service and worsening of symptoms with certain physical activities during employment. Thus, the Board finds that his statements are credible. Based on the foregoing, the evidence of record is at least in equipoise as to whether the Veteran's low back disorder, diagnosed as degenerative changes of the lumbar spine, is related to the Veteran's period of service. Accordingly, the Board concludes that entitlement to service connection for a low back disorder is warranted. ORDER Service connection for a low back disorder, diagnosed as degenerative changes of the lumbar spine, is granted. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs