Citation Nr: 1739271 Decision Date: 09/14/17 Archive Date: 09/29/17 DOCKET NO. 13-32 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from January 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Milwaukee, Wisconsin, that denied service connection for a low back disorder. This matter was previously before the Board in July 2015 and February 2016 at which time it was remanded for additional development. It is now returned to the Board. The Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders, and no further action is necessary in this regard. The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been considered by the Board in adjudicating this matter. FINDING OF FACT It is at least as likely as not that the Veteran's back disability is etiologically related to service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a low back disability have been met. 38 U.S.C.A. §§ 101, 106, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.306 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. In the decision below, the Board grants the claim of service connection for a low back disability. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Service Connection 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Here, the Veteran asserts that he has a current low back disability that is manifested as a result of his period of active service. In September 2010 correspondence, he contends that prior to service, while in school, he never experienced any back issues. After graduating, he worked for a moving company, and then was inducted into service in January 1969. He described that while stationed stateside at a War College called Carlisle Barracks, PA, he experienced back problems a number of times. He added that he mentioned those issues during his separation examination. He further indicated that following service, he continued to experience back symptoms until they became severe in July 2009. The Veteran's contentions were reiterated by his spouse in a lay statement also dated in September 2010. Based on the evidence of record, service connection should be granted. First, the medical evidence of record confirms that the Veteran has been diagnosed with a current low back disability. With respect to in-service incurrence, a veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111, 1132 (West 2014); 38 C.F.R. § 3.304(b) (2014). However, the mere notation of prior treatment does not constitute a "disorder noted at the time of examination." As was the case here, although he did receive treatment for back problems prior to service, no disorder was observed at the time of his examination. Therefore, the Veteran's back is presumed to have been in sound condition at the time he enlisted. Moreover, the evidence indicates that he sought treatment for his back on a number of occasions in service. Specifically, in March 1970, he was treated mid-back pain mainly on the left with muscle spasms of the paraspinal muscles. He was placed on light duty and given medication. A service treatment record dated in July 1970 shows that the Veteran was again treated for acute low back strain. Finally, the Veteran's August 1970 separation examination report shows an indication of acute back pain with an area of muscle spasm lateral to the thoracic spin which was tender to palpation. Bilateral spondylolysis of the lumbar spine at L5 was also documented. Finally, there is sufficient evidence to conclude that the Veteran's current symptoms are related to service. Specifically, while the VA examiners determined that the Veteran's back disorder was less likely than not related to service, the Board is swayed by the Veteran's statements, in conjunction with the types of complaints shown in service, to the conclusion that his active duty service was at least a factor in his current symptoms. Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current low back disability is related to service. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for a low back disability. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a back disability is granted. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs