Citation Nr: 1611538 Decision Date: 03/22/16 Archive Date: 03/29/16 DOCKET NO. 09-26 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a low back disability REPRESENTATION Veteran represented by: Kathy A. Lieberman, Attorney ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active military service from August 1980 to August 1984. He also service in the Puerto Rico Army National Guard from 1984 to 2008 with various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), including ACTDUTRA from June 24, 2006 to July 8, 2006. This case initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In a January 2014 decision, the Board denied the Veteran's service connection claim for a low back disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court"). In January 2015, the Court vacated the January 2014 Board's decision denying service connection and remanded the claim to the Board for action consistent with the Court's decision. FINDING OF FACT Resolving all doubt in favor of the Veteran, his low back disability is the result of his active service. CONCLUSION OF LAW The criteria for service connection for a low back disability have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board is granting in full the benefits sought on appeal for entitlement to service connection for erectile dysfunction and urinary incontinence. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. In order to establish entitlement to service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease of injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for injury or disease incurred or aggravated during a period of ACDUTRA is warranted. 38 U.S.C.A. § 101(24)(B); 38 C.F.R. § 3.6(a). On June 30, 2006, while performing ACDUTRA, the Veteran complained of back pain following his participation in an Army Physical Fitness Test (APFT). Subsequent records include a February 2007 Physical Profile for radiculopathy at L4-L5 and L5-S1, a March 2007 Medical Profile for L4-L5 and L5-S1 disc desiccation, and a March 2008 Physical Evaluation Board finding that the Veteran was 10 percent disabled due to a low back disorder. However, medical records also show the Veteran had complained of occasional low back pain as early as May 1991, that he was identified with lumbar discogenic disease as early as March 1999, and that he was treated in April 2006 for disc desiccation and herniation at L5-S1 with radiculopathy. An October 2013 VA examiner found that an April 2006 lumbar spine MRI, prior to his ACDUTRA, showed no significant structural changes when compared with an August 2013 MRI. Furthermore, the October 2013 VA examiner found no significant changes between the current examination findings and the previous May 2008 VA examination findings. In January 2014, the Board found that the Veteran had a preexisting low back disability which was not permanently increased during his period of ACTDUTRA. In a January 2015 Memorandum Decision, the Court determined that the Board wrongly applied the presumption of aggravation and indicated that the Veteran must demonstrate direct evidence both that 1) a worsening of the back disability occurred during the period of ACTDUTRA and 2) that the worsening was caused by the period of ACTDUTRA. The Court also found that the October 2013 VA examiner failed to adequately discuss the Veteran's prior medical history, which revealed a diagnosis of left L5 radiculopathy. In September 2015, the Board requested a new medical opinion. In November 2015, after reviewing the Veteran's claims file, a VA examiner opined that the medical records indicated that there was no direct evidence of a permanent increase in severity of the Veteran's low back disability during ACDUTRA. Subsequently in February 2016, Dr. Aliya Ali, M.D., submitted a medical opinion. After reviewing the Veteran's claims file, including the November 2015 VA examiner's opinion, Dr. Ali opined that the Veteran's low back disability underwent a permanent increase in severity during ACDUTRA, the increase was due to the physical rigors of his condition, and the increase exceeded the natural progression of his low back disability. As such, when weighing the VA opinion with the private opinion, the Board finds that at most they show that the evidence for and against the Veteran's claim is in relative equipoise. In such circumstances, the regulations dictate that reasonable doubt is to be resolved in the Veteran's favor. Accordingly, the Veteran's claim for service connection for a low back disability is granted. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER Service connection for a low back disability is granted. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs