Citation Nr: 1516426 Decision Date: 04/16/15 Archive Date: 04/24/15 DOCKET NO. 13-21 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a back disability, to include degenerative joint disease/degenerative disc disease. REPRESENTATION Appellant represented by: Paul M. Goodson, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1992 to September 1993 and from August 2005 to May 2006, with service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge at a May 2014 videoconference hearing. A copy of the transcript is associated with the claims file. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and VBMS systems to ensure review of the totality of the evidence. FINDINGS OF FACT Resolving reasonable doubt in favor of the Veteran, the Veteran's currently diagnosed back disability is the result of his military service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, a back disability was incurred during the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As a preliminary matter, with regard to a claim such as this one that involves the possible question of aggravation of a preexisting condition, the Board notes that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled in service, except for defects, diseases, or infirmities noted at the time of entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. See 38 U.S.C.A. § 1111 (West 2012). The VA Office of the General Counsel determined that VA must show by clear and unmistakable evidence that there is a preexisting disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3-03 (July 16, 2003). The veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See id. The Board must follow the precedent opinions of the General Counsel. See 38 U.S.C.A. § 7104(c) (West 2012). Here, there is no clear and unmistakable evidence that the Veteran's back disability preexisted his military service. Such disability is not noted upon an entrance examination for either period of service. A July 2011 VA examiner suggested that the disability existed prior to the Veteran's second period of service, however, a March 2013 VA examiner concluded that there is no clear and mistakable evidence that a back disability preexisted the Veteran's second period of service. While there is a suggestion that the Veteran may have had a back condition that predated his most recent period of active duty, as there is no clear and unmistakable evidence that such disability existed, the Board must find that his back was sound upon his entry into his second period of active service. Here the Veteran has a current diagnosis of degenerative changes of the lumbar spine, noted as both degenerative disc disease and degenerative joint disease. In addition, the Veteran was diagnosed with diffuse marrow signal abnormality in August 2010. Service treatment records document August 1993 and August 2005 treatment for a back condition. In addition, the Veteran has consistently alleged that his current back condition began during his second period of service and has continued ever since. As a result, Shedden elements (1) and (2) are satisfied. With respect to the "nexus" requirement, the July 2011VA examiner concluded that the Veteran's August 2005 in-service treatment likely represented symptoms of degenerative disc disease of the lumbar spine, however, that it likely existed prior to his second period of service. As previously discussed, a back condition was not noted upon entrance into the Veteran's second period of service and there is no clear and unmistakable evidence that such a condition preexisting entry into service. As a result, the Board finds the examiner's conclusion that it preexisted service to be of no probative value. However, the Board does note that the examiner opined that the August 2005 in-service back treatment was likely due to his currently diagnosed degenerative disc disease. A March 2013 VA examiner concluded that the Veteran's lumbar spine degenerative disc disease and degenerative joint disease were less likely than not related to his military service. The examiner relied on the lack of additional treatment records for a back condition while in service and the time from separation until a back disability was diagnosed in August 2007. The Board notes that the Veteran was separated from service in May 2006 and was originally diagnosed with his current back disabilities in an August 2007 private treatment record. The Board finds that this period of approximately 15 months is hardly an extensive period of time between separation and diagnosis. Moreover, this opinion ignores the Veteran's report of a continuity of symptomatology since service. The record contains two conflicting VA examiner opinions as to the etiology of the Veteran's currently diagnosed back disability. When both medical opinions are viewed in light of the Veteran's lay statements and consistent assertions of a continuity of symptomatology, which the Board has found to be both credible and competent with regard to reporting symptoms, the medical and lay evidence for the claim and the evidence against the claim are at least in equipoise. Accordingly, the benefit-of-the-doubt rule applies and service connection for a back disability is warranted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a back disability is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs