Citation Nr: 1734879 Decision Date: 08/24/17 Archive Date: 09/06/17 DOCKET NO. 11-15 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES Entitlement to service connection for residuals of a low back injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel INTRODUCTION The Veteran had honorable active service in the United States Navy from September 1986 to August 1990. The Veteran received multiple awards including the Sea Service Deployment Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2017. A transcript of the hearing has been associated with the claims file. The Veteran also appealed the issue of entitlement to service connection for bilateral hearing loss. A December 2009 rating decision granted service connection for hearing loss. Therefore, this issue is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). FINDING OF FACT It is as likely as not the Veteran's residuals of a low back injury characterized as lumbar degenerative disc disease, lumbar facet joint syndrome, and lumbar radiculitis is related to service. CONCLUSION OF LAW The criteria for service connection for residuals of a low back injury characterized as lumbar degenerative disc disease, lumbar facet joint syndrome, and lumbar radiculitis are met. 38 U.S.C.A. §§ 1110, 1131 (West 2016); 38 C.F.R. § 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.326(a). In light of the favorable disposition of the claim for service connection for residuals of a low back injury, the Board finds that any deficiencies with regard to the duty to notify or assist is non-prejudicial, and thus, no further discussion of VA's duties to notify and assist is necessary. II. Analysis of Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply to the claim. Walker v. Shinseki, 708 F.3d 1331, 1337-1338 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease, at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree (10 percent disabling) within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Even if service connection is not warranted under one of the presumptive regulations, this does not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Service connection may also be granted for a disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 446-449 (1995) (en banc). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence, which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). III. Low Back Disability The Veteran seeks service connection for residuals of a low back injury. The Veteran asserts that his low back injury is related to an injury he sustained in service. At the May 2017 videoconference hearing, the Veteran testified that he injured his back in service while carrying a 600-pound main steam valve. He testified that after his injury he went to medical, where they treated him with pain medicine; he slept for three days and then returned to work. He testified that he had pinching pains after the injury; and that he has had continuous back problems since his low back injury. The Veteran testified that in approximately 1992 to 1993, he began to experience more problems with his back, and he was diagnosed with acute lower lumbar problems. The Veteran testified that he injured his upper back and neck at work in 1995, and injured his neck in a motor vehicle accident in 2010. He testified that the two injuries did not involve his low back. The Veteran testified that he had surgery for his back in May 2015, which repaired one of three damaged disks in his low back; the remaining two degenerative disks in his back were not repaired. The Veteran served in the United States Navy from September 1986 to August 1990. Service treatment records in January 1989 reflect a diagnosis of acute lumbar muscle strain. The Veteran complained of back pain, which had lasted for four days. The Veteran described the pain as a sharp constant burning pain and stated that it hurt when he took deep breaths. Physical examination reflected that the Veteran's back had limited range of motion due to pain and mild tenderness over the lumbar spine. The treatment provider noted that the Veteran did not have a history of back pain. Post-service treatment records reflect treatment for low back pain since 1993. VA treatment records in March 1993 reflect a diagnosis of shallow dextroscoliosis. The Veteran complained of low back pain. The Veteran reported that he was moving five-gallon paint buckets the day before and the current day. That evening while he was trying to tie his shoes, his back locked up, and he was unable to move. He arrived at the ER in an ambulance on a long backboard. The treatment provider noted routine view of the lumbar spine failed to demonstrate any evidence of fracture, dislocation or bony pathology. The treatment provider noted that shallow dextroscoliosis was seen, and the disc spaces and pedicles appeared well maintained. The March 1993 VA treatment record reflects that the Veteran reported that a similar episode happened to him years ago. The Veteran reported that he went to VA, and was treated with Tylenol. The Veteran reported that he never had a workup done on his back. December 1993 VA treatment records reflect that the Veteran reported experiencing back pain while driving his car. The Veteran reported pain in the middle of his back with cramping. X-rays were taken of the Veteran's lumbar spine, which reflected that there was disc space narrowing at L5-S1, and there was no bony abnormality seen. The treatment provider noted that there was intervertebral disc height loss at L5-S1, and noted that it suggested a correlation regarding radicular symptomatology. A March 1995 VA treatment record reflects that x-rays were taken of the Veteran's thoracic spine. The treatment provider noted that the clinical history reflected a possible strain in the right upper back. November 2003 VA treatment records reflect that x-rays were taken of the Veteran's lumbar spine, which reflected a lumbar strain. A treatment provider noted that there was mild curvature with mild spurring anteriorly at L3-L4. The treatment provider noted that it was not unremarkable for the Veteran's age. The Veteran complained of low back pain. The treatment provider noted that the Veteran had a history of low back pain for about two years. A physical examination of the Veteran's lower back reflected increased low back pain with hip abduction and adduction bilaterally, and pain with palpation to the paravertebral lower back. An April 2015 private medical opinion reflected a diagnosis of lumbar degenerative disc disease, lumbar facet joint syndrome, and lumbar radiculitis. The Veteran reported that while serving in the military he injured his lower back while lifting. He reported that since that time, he had developed progressive lower back pain, stiffness, and episodes of back spasm and sensory complaints into the hips and upper thighs. The Veteran complained of chronic low back pain and spasms with intermittent sensory complaints in his hips and upper thighs. The April 2015 treatment provider noted that he reviewed of the Veteran's prior films, including pain films, and magnetic resonance imaging (MRIs) of the lumbar spine. Private medical treatment records reflect that the treatment provider had been providing the Veteran with pain management treatment since at least April 2014. The treatment provider opined that it was as likely as not that the Veteran's current condition was the result of the earlier injuries that he reported while serving in the military. The private physician noted that the films and the MRIs documented chronic changes in the Veteran's lower lumbar discs at L3-L4, L4-L5, L5-S1 with degenerative disc disease in the lumbar facet joints and the ligaments with resulting narrowing of the spinal canal and the recess space. The private physician opined that the chronic changes of the Veteran's lumbar spine were certainly consistent with the Veteran's history of an earlier lifting injury. The treatment provider noted that the chronic changes of the lumbar spine are usually the result of an initial injury to the lumbar spine, which results in lumbar disc injury. May 2015 private treatment records reflect a diagnosis of spondylosis, and that the Veteran underwent Transforaminal Lumbar Interbody Fusion (TLIF) of the L4-L5. An April 2016 Thoracolumbar Spine Disability Benefits Questionnaire (DBQ) reflects a diagnosis of lumbosacral strain, degenerative arthritis of the spine, and lumbar radiculopathy. The Veteran reported that he injured his back in service in 1989, and had continued back pain since then. The Veteran reported that he injured his thoracic spine in 1995 at work, and received workers' compensation for the thoracic injury. He also reported that he was involved in a motor vehicle accident in 2010 and that he had not worked or been the same since then. Resolving all reasonable doubt in the Veteran's favor, the Board finds that his current lumbar spine disability had its onset in service and service connection for a low back injury is warranted. Service treatment records reflect that the Veteran sustained a low back injury in service. The Veteran credibly testified that he experienced back pain after his low back injury and continued to have periodic issues with his back since service. VA treatment records reflect that the Veteran periodically complained of low back pain prior to his work related injury in 1995. VA treatment records also reflect that the Veteran complained of an upper thoracic spine injury in 1995. The April 2015 medical opinion establishes that the Veteran's low back disability characterized as lumbar degenerative disc disease, lumbar facet joint syndrome, and lumbar radiculitis had its onset during the Veteran's period of active service from September 1986 to August 1990. The April 2015 opinion is competent, credible and probative, and coupled with the other medical evidence of record including the service records, VA treatment records, and lay evidence, supports a conclusion that service connection for residuals of a low back injury characterized as lumbar degenerative disc disease, lumbar facet joint syndrome, and lumbar radiculitis is warranted. ORDER Service connection for residuals of a low back injury characterized as lumbar degenerative disc disease, lumbar facet joint syndrome, and lumbar radiculitis is granted. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs