Citation Nr: 1632718 Decision Date: 08/17/16 Archive Date: 08/24/16 DOCKET NO. 12-15 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1963 to January 1968. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2014, the Veteran presented testimony in a travel board hearing before the undersigned. A copy of the transcript has been associated with the claims folder. Thereafter, the Board remanded this claim in February 2015. After the case was returned to the Board, the Board requested a Veterans Health Administration (VHA) opinion in June 2016; an opinion was received thereafter, and the matter is once again before the Board for appellate consideration. This appeal was processed using the Virtual VA/VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's lumbar spine disorder, to include degenerative disc and joint disease, is etiologically related to his active duty. CONCLUSION OF LAW The criteria to establish service connection for a lumbar spine disorder, to include degenerative disc and joint disease, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. 38 U.S.C.A. § 5103 (West 2014); 38 C.F.R. § 3.159(b)(1) (2015). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). In light of the favorable disposition of the issue on appeal, the Board finds that any deficiency in VA's notice or development actions is harmless error with respect to this issue. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). To establish a right to compensation for a present disability, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). The Veteran contends he has a current lumbar spine disability due to service, specifically to two incidents involving his spine. He asserts he initially injured his spine in August 1966 while climbing a telephone pole and again in September 1966 at which time he was in traction at Leighton Barracks Hospital in Germany for two to three days. The Veteran has stated that he has had back symptoms since service. Service treatment records show that the Veteran was seen for complaints of back pain in September 1965. He was also hospitalized on August 19, 1966, and discharged on August 25, 1966, for contusion of the back. The Veteran also indicated at his hearing that due to his spine problems he only worked in supervisory positions post-service. The Veteran was afforded an examination for his spine in March 2010. The diagnosis was degenerative disc and joint disease of the lumbar spine. Upon review of the claims folder and examination of the Veteran, the examiner opined that the degenerative disc and joint disease of the lumbar spine was less likely as not caused by or a result of injury in service. The examiner cited to the August 1966 accident and indicated that because there were no further clinical entries regarding the back and because the Veteran's examination report at service discharge was silent regarding the spine, there was no evidence of chronic back pain in service. The examiner also cited to the lack of post-service treatment regarding the spine until August 2009; the examiner did not consider the Veteran's statements of continuing symptoms since service. The Board found that this examination report was inadequate in February 2015. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination must address the Veteran's competent and credible lay evidence). An October 2015 VA examination was conducted. After examining the Veteran and reviewing the record, the examiner opined that the low back disorder was less likely than not incurred in or caused by the claimed in-service contusion to the Veteran's back. The examiner explained that there was no documentation spanning August 1966 to August 2009 surrounding a low back condition. As such, there was no objective evidence to support a link between the Veteran's current degenerative disc disease of the lumbar spine, diagnosed to the 2010, and his active service. This opinion is also inadequate. An examination must address the Veteran's competent and credible lay evidence. See Dalton, 21 Vet. App. at 39-40. A July 2016 VHA opinion was obtained. After reviewing VA and service treatment records, as well as the Veteran's lay statements, the VHA examiner opined that it was more likely than not that the each current lumbar spine disorder had its onset in service or is otherwise related to the Veteran's military service. The examiner placed special emphasis on the Veteran's lay evidence that his back problems started during his military service and had continued since that time. The examiner also cited to three instances where the Veteran received treatment for low back injuries during his military service, two of the treatments lasting for days. Specifically, the examiner cited to the August 1966 contusion of the back and the September 1966 back injury, resulting in treatment in the hospital for several days. The examiner also acknowledged a September 1965 service treatment record which documents the Veteran complaining of back pain, this incident occurring prior to the August and September 1966 visits. The examiner next referenced several VA treatment records that document "long-standing back issues", corroborating the Veteran's statements. For instance, the examiner cited to an August 2009 VA treatment note which referenced lower back pain for many years. He also cited to an August 2012 record that documents the Veteran stating his back pain had started years ago. In addition to the records that support the Veteran's statements that his back symptomatology extended back to service, the examiner also discussed the previous VA examinations that found that the Veterans present symptoms were attributable to naturally occurring degenerative disc and joint disease. The VHA examiner disagreed with these conclusions, stating that there was no objective evidence for the previous examiner's conclusions other than one set of x-rays from March 2010, which "is not sufficient to make a strong argument." The examiner found that the Veteran's account of his back problems carried more weight than the recent VA records. The VHA examiner reiterated that while the previous contentions that the Veteran's symptoms are due to naturally occurring degenerative spine disease was valid, the evidence supporting these opinions is weaker than the Veteran's lay evidence and his service treatment records, which documented clear and significant spine injuries on two separate occasions. The Board accords the 2016 VHA opinion significant evidentiary weight because it was based upon a comprehensive review of the record and the medical literature. Furthermore, the examiner provided a thorough and clear explanation and is the only medical opinion that addressed the Veteran's lay statements. See Nieves-Rodriguez, 22 Vet. App. at 301 (noting that a medical examination report or opinion must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two); Dalton, 21 Vet. App. at 39-40. Based on the VHA opinion, the Board finds that service connection is warranted for the Veteran's present lumbar disorder, to include degenerative disc and joint disease of the spine. ORDER Service connection for a lumbar spine disorder, to include degenerative disc and joint disease, is granted. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs