Citation Nr: 1735014 Decision Date: 08/24/17 Archive Date: 09/06/17 DOCKET NO. 12-11 387A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel INTRODUCTION The Veteran had active duty service from May 1987 to September 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The matter was previously before the Board in September 2015, when it was remanded for further development. It has now been returned to the Board for further appellate review. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's currently diagnosed back disability is causally related to his military service. CONCLUSION OF LAW The criteria for service connection for a back disability have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the claim given the favorable nature of the Board's decision. Legal Criteria and Analysis As an initial matter, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is seeking service connection for a back disability. The record contains post-service treatment records showing a diagnosis of a back disability. An April 2012 MRI included a diagnosis of mild degenerative disc disease at L4-L5. As such, the first element of the claim of service connection, the existence of a present disability, has been met. The Veteran contends that his back disability was the result of his military service, to include a motor vehicle accident in December 1991. Service treatment records include a December 1986 Report of Medical Examination for enlistment, which showed a normal clinical evaluation of the spine. On his December 1986 Report of Medical History, the Veteran answered "no" when asked if he had or ever had recurrent back pain. Records from December 1991 show that the Veteran was diagnosed with back pain following a motor vehicle accident. Immediately following the motor vehicle accident, an X-ray was taken of the Veteran's spine, which showed no fractures, subluxations, or dislocations. The intervertebral disc spaces were preserved, and no other condition was noted. In February 1992, the Veteran underwent an MRI of his spine and no abnormalities were found. In January 2002, the Veteran suffered lumbar back pian after moving furniture at work. He was assessed with lower back pain. In November 2007, the Veteran complained of back pain. Upon examination, the Veteran's thoracolumbar spine appeared to be normal. In February 2008, X-rays of the thoracic spine showed deformities in a minor anterior dishing from T3 through T8. X-rays of the lumbar spine revealed maintained vertebral body heights. Mild disc space narrowing was noted at L5-S1, with no evidence of subluxation. The Veteran's intervertebral disc spaces were otherwise normal, and the sacroiliac joints were normal. In March 2008, during treatment at the chiropractic clinic, the Veteran complained of lower thoracic and upper lumbar discomfort. He was diagnosed with segmental dysfunction of the lumbosacral region and the thoracic region in February and March 2008. Consequently, the Board finds that an in-service event is established and that the second element of the claim of service connection has been met. The remaining question is whether there is a relationship between the Veteran's service and his current back disability. In that regard, the Board notes the Veteran underwent a VA examination in December 2009. The examiner indicated on the examination report that the Veteran's claims file was not available for review. The Veteran stated that the onset of his back problems was after the December 1991 in-service motor vehicle accident. Upon examination, the examiner found that the Veteran's back was symmetric with gross scoliosis or exaggerate kyphosis or lordosis. An X-ray of the thoracic spine revealed minimal kyphoscoliosis and no other significant abnormalities. A X-ray of his lumbar spine reveal very minimal scoliosis convex left in the mid lumbar region. The Veteran's disc spaces were well-maintained and there were no signs of fracture. With regard to diagnosis, the examiner diagnosed the Veteran with a resolved in-service lumbar strain without residuals, minimal kyphoscoliosis, and minimal mid-lumbar spine scoliosis. The examiner opined that the minimal kyphoscoliosis, and minimal mid-lumbar spine scoliosis were developmental defects and were not caused by or related to the his military service. However, the examiner did not provide any rationale for the opinion. In February 2010, another VA examination was obtained. The examiner relied on the findings of the December 2009 VA examination, and opined that the Veteran's minimal kyphoscoliosis and minimal mid-lumbar spine scoliosis were not caused by, related to, or worsened beyond the natural progression by the Veteran's military service, and there was no evidence that either condition increased during the Veteran's military service. The examiner did not provide any further explanation or a rationale for this opinion. No other disability or disorder was diagnosed. An April 2012 treatment record from Elgin AFB noted that the Veteran complained of intermittent pain in the low back that was worse in the evening. It was noted that the Veteran originally began having pain after a motor vehicle accident in 1991. An April 2012 MRI revealed minimal anterior sclerosis consistent with early degenerative changes at the visualized sacroiliac joints. Additionally, at L4-L5, there was a mild circumferential disc bulge resulting in a flattening of the posterior aspect of the discs. The impression was mild degenerative disc disease at L4-L5. The Veteran underwent another VA examination in January 2016. The examiner indicated that the claim file was reviewed. The examiner noted the Veteran's statement that he did not have scoliosis. Scoliosis was a developmental condition which had no significance unless it exceeded certain degrees. The examiner found that there was insufficient evidence to warrant or confirm a diagnosis of an acute or chronic scoliosis condition or its residuals at this time. No condition was diagnosed as the Veteran had a normal examination. The examiner indicated that x-rays and MRI from 2012 demonstrated no scoliosis, and that the Veteran's symptomatology was most likely than not the result of deconditioning due to sedentary lifestyle and office work, aggravated by increased BMI and poor mechanics. The Veteran had low levels of Vitamin D, and the examiner indicated that recent studies "demonstrated low Vitamin D levels as etiology of muscular/joint discomfort." The Veteran submitted an April 2016 letter from Dr. R.M., the Veteran's former chiropractic physician. Dr. R.M. indicated that radiographs done in 2008 during treatment with her demonstrated that there was no scoliosis but that there was disc degeneration of the spine, and that the Veteran was diagnosed with thoracic and lumbosacral segmental dysfunction of the spine in January 2008. Dr. R.M. noted that she ordered her films as weight bearing to eliminate aberrant positioning on the x-ray table. Dr. R.M. also noted that there were no findings of scoliosis by any providers and the MRI findings from April 2012 did not show any scoliosis, but was significant as it showed mild circumferential disc bulge resulting in flattening of the posterior aspect of the discs and resulting in mild neural foraminal narrowing. Based on a review of the medical record, Dr. R.M. indicated that the Veteran's current back pain stemmed from the 1991 motor vehicle accident, from exacerbation of his work-related injury in 2002, and the type of the work the Veteran did for 22 years in the military, all of which took a severe toll on his spine. The Veteran was never diagnosed with scoliosis so it was not relevant in his continued back pain. Dr. R.M. opined that the Veteran's back pain has been continuous throughout active duty to present; and that he continues to have significant discomfort after service, further confirming the chronicity and permanence of his degenerative spinal condition. Upon consideration of the evidence above, the Board finds that, as will be explained below, resolving all reasonable doubt in the Veteran's favor, service connection for a back disability is warranted. Indeed, in considering the opinions of record, the Board finds that the December 2009 and February 2010 VA opinions are of little probative value. The December 2009 examiner did not review the Veteran's claim file and both opinions were not accompanied by any rationale or explanation of the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Board also notes that the January 2016 VA examiner reviewed the claim file and found there was no diagnosis of any back condition, and related the Veteran's symptoms to low Vitamin D levels. However, the examiner, while stating that the April 2012 MRI did not show a finding of scoliosis, did not address the finding on the MRI of mild degenerative disc disease of the lumbar spine. On the other hand, the April 2016 opinion from Dr. R.M. was also based on a review of the Veteran's claim file and Dr. R.M. did acknowledge the April 2012 MRI finding of mild degenerative disc disease at L4-L5. She found that the Veteran's back pain had been continuous and significant throughout active duty to present, which further confirmed the chronicity and permanence of his degenerative spinal condition. Dr. R.M.'s opinion reflected consideration of the Veteran's medical history, as well as a more comprehensive review of his post-service treatment. As such, the Board places greater weight of probative value on Dr. R.M.'s April 2016 opinion. Finally, the Board acknowledges the x-ray findings during the December 2009 VA examination of minimal thoracic spine kyphoscoliosis and minimal mid-lumbar spine scoliosis. However, scoliosis was not found in the service treatment records, the April 2012 MRI, during the January 2016 VA examination, and in the opinion of Dr. R.M. in April 2016. The Veteran has also repeatedly contended that he does not have or has ever had scoliosis. Therefore the Board finds that a preponderance of the evidence is against finding that the Veteran has scoliosis. In so finding, the Board also refers to the April 2016 opinion of Dr. R.M., who indicated that the films ordered in 2008 were ordered as weight bearing to eliminate any aberrant positioning on the x-ray table, and did not demonstrate that the Veteran had scoliosis. As the Veteran does not have scoliosis, it is not necessary to determine whether any scoliosis is a congenital defect or congenital disease, whether a disease or injury during service was superimposed on a congenital defect, or whether any congenital disease was permanently aggravated beyond its natural course by military service. In sum, given the above, the Board finds that the evidence is at the very least, in equipoise as to whether the Veteran's current back disability, diagnosed as degenerative disc disease at L4-L5, is due to his military service. Therefore, resolving reasonable doubt in the Veteran's favor, service connection for a back disability, degenerative disc disease at L4-L5, is granted. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for degenerative disc disease at L4-L5 is granted. ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs