Citation Nr: 1646747 Decision Date: 12/14/16 Archive Date: 12/21/16 DOCKET NO. 12-27 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for degenerative disc disease and spondylosis at L3-4 and L5-S1. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Grace J. Suh, Associate Counsel INTRODUCTION The Veteran served in the United States Navy from December 1977 to December 1981. Thereafter, the Veteran served on active duty with the United States Air Force from October 2001 to September 2002. The Veteran also appears to have served in the United States Air Force Reserves from approximately 1991 to 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which, in part, denied service connection for degenerative disc disease and spondylosis at L3-4 and L5-S1. During the pendency of this appeal, in May 2015, the RO granted the Veteran service connection for chronic lumbar strain with an evaluation of 10 percent effective November 2008. The Board notes the Veteran requested a video conference hearing. The record reflects that in December 2015, the VA mailed to the Veteran a letter notifying him of a January 2016 hearing date. However, the letter was returned to the VA indicating that it was not deliverable as addressed and could not be forwarded. However, as the claim is granted in full, there is no due process issue and the Board may proceed with adjudication of this claim. The Board notes the RO issued a Supplemental Statement of the Case in May 2015, after which the VA received documentation of a private examination dated July 2016, which has not been considered by the RO. However, as the claim is granted in full, there is no prejudice to the Veteran and the Board may proceed with adjudication of this claim. FINDING OF FACT With the resolution of reasonable doubt, the Board finds that symptoms resulting from the Veteran's service-connected chronic lumbar strain cannot be disassociated from the symptoms resulting from his degenerative disc disease and spondylosis at L3-4 and L5-S1. CONCLUSION OF LAW The criteria for establishing service connection for degenerative disc disease and spondylosis at L3-4 and L5-S1 have been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for degenerative disc disease and spondylosis at L3-4 and L5-S1 herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000. Service connection may be established when the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established for any disease diagnosed after the discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during the active service. 38 U.S.C. § 1113(b); 38 C.F.R § 3.303(d). In order to prove service connection, there must be competent, credible evidence of (1) current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus or link between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341, 346 (1999). Alternatively, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence showing that (1) a current disability exists and (2) the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In reaching its decision, the Board must give the veteran the benefit of the doubt on any issue material to the claim where there is an approximate balance of positive and negative evidence. Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran seeks service connection for degenerative disc disease and spondylosis at L3-4 and L5-S1. In support of his claim, the Veteran reports that during the winter of 1996-97, while in reserve service, he injured his lower back when he fell in a hole during a base operation readiness drill. As a result, the Veteran experienced sharp pain in his lower back. The Veteran states that he continues to experience severe radiating pain in his lower back/pelvic region. The Board notes a September 2009 memorandum from L.W.B., in which L.W.B. confirmed the Veteran's back injury in 1997, and a December 2008 Buddy Statement in which E.B., Jr., stated he observed the Veteran had back pain during reserve service. Further, the Veteran's service treatment records and private medical records show that he was treated for back pain in-service and has continued to receive treatment for the same. In connection with his claim, the Veteran was afforded a VA examination in June 2009. At that time, the examiner noted a diagnosis of degenerative disc disease and spondylosis at L3-4 and L5-S1. However, the examiner failed to provide a medical opinion. Consequently, the Veteran was afforded a second VA examination in February 2014. At that time, the examiner noted that the Veteran's diagnoses included degenerative disc disease and spondylosis of the lumbar spine with radiculopathy to right and left lower extremity as well as chronic lumbar strain. The examiner opined the Veteran's degenerative disc disease and spondylosis was less likely than not related to his complaints of low back pain while in reserve service or on active duty. In contrast, the examiner went on to opine the Veteran's chronic lumbar strain was more likely than not aggravated by his military service. Thus, the examiner concluded that "it would involve mere speculation to determine the degree to which [the] Veteran's military service contributed to his chronic lumbar strain" because there is no baseline range of motion testing of the Veteran's lumbar spine prior to the development of his degenerative disc disease and spondylosis, which most likely also contributed to the Veteran's loss of function of his lumbar spine. Subsequently, in December 2014, an addendum to the February 2014 VA examination was completed. In the addendum the examiner provided supporting rationale pertaining to the chronic lumbar strain. Once again, the examiner opined the Veteran's low back symptoms and loss of motion was most likely due to both lumbar conditions and concluded that it would "involve mere speculation to differentiate if [the Veteran's] loss of motion of his lumbar spine is due to either his lumbar strain or [degenerative disc disease] [and] spondylosis." Following the December 2014 VA examination addendum, in May 2015, the Veteran was granted service connection for chronic lumbar strain with an evaluation of 10 percent effective November 2008. In light of the May 2015 grant of service connection for chronic lumbar strain, the Board finds the holding in Mittleider v. West controlling. Mittleider v. West, 11 Vet. App. 181 (1998). In Mittleider, the United States Court of Veterans Appeals held that when it is not possible to separate the effects of the service-connected condition and the non-service connected condition, reasonable doubt should be resolved in the claimant's favor. Mittleider, 11 Vet. App. at 182; 38 C.F.R. § 3.102. To that end, the examiner's conclusions in the February 2014 VA examination and December 2014 VA examination addendum must be accorded significance. Because in each instance the examiner determined it was not possible to separate whether the Veteran's loss of motion of his lumbar spine was due to either his lumbar strain or his degenerative disc disease and spondylosis, the Veteran's symptomatology cannot be disassociated from either disability, which requires that reasonable doubt be resolved in the Veteran's favor. Thus, affording the Veteran the benefit of the doubt, service connection for degenerative disc disease and spondylosis at L3-4 and L5-S1 is warranted. ORDER Service connection for degenerative disc disease and spondylosis at L3-4 and L5-S1 is granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs