Citation Nr: 1739979	
Decision Date: 09/18/17    Archive Date: 09/29/17

DOCKET NO.  13-31 369	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for lumbar degenerative changes and retrolisthesis (claimed as a low back injury).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Amanda Baker, Associate Counsel

INTRODUCTION

The Veteran served on active duty from July 1975 to July 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee in which the RO denied service connection for a back injury.  

In February 2012 and March 2012 rating decisions, the RO continued to deny the claim for service connection for a low back injury.

In August 2016 the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file. 


FINDING OF FACT

The evidence is at least evenly balanced as to whether the Veteran's lumbar degenerative changes and retrolisthesis had its onset in service.


CONCLUSION OF LAW

With reasonable doubt resolved in favor of the Veteran, lumbar degenerative changes and retrolisthesis were incurred in service.  38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran claims to have continuous low back pain from an in-service injury.  He reports having a motor vehicle accident during service in which the vehicle he was driving was rear-ended by another vehicle, which caused him low back pain.  See January 2012 VA Form 21-4138.  He claims that local police recorded an accident report, however, he was informed that such accident reports are not maintained after five years.  See March 2012 VA Form 21-4138.  He also reports seeking private medical treatment after the in-service motor vehicle accident, but these treatment records are also unavailable.  Id.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).  Consistent with this framework, service connection is warranted for a disease first 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).

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected.  If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required.  Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. §  3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101 (3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331   (Fed. Cir. 2013).  Arthritis is one of the listed chronic diseases.  In addition, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101 (3), 1112(a)(1), 1113 (West 2014); 38 C.F.R. §§ 3.307(a), 3.309(a) (2016).

Service treatment records contain no complaints of or treatment for a low back disability.  They are also silent for an in-service motor vehicle accident.  On March 1978 separation, a clinical evaluation of the spine was normal. 

Post-service VA evidence documents continuous complaints and treatment for low back pain.  March 2012 lumbar x-rays show degenerative changes in the lumbar spine with minimal retrolisthesis.  An October 2012 magnetic resonance imaging (MRI) of the lumbar spine showed multilevel disc disease.  March 2014 and April 2014 treatment records document chronic lower back pain.  In May 2014, a past medical history of degeneration of the lumbar spine was noted.  In April 2014 and August 2014, a diagnosis of lower back pain was provided.  August 2015 and October 2015 treatment records continue to document the Veteran's complaints of low back pain.  In November 2015, an assessment of chronic back pain was provided.

In August 2016 the Veteran provided testimony at a Board videoconference hearing.  He stated that in 1977 he was on temporary duty assignment in New Mexico when he was involved in a motor vehicle accident.   He testified that he was a driving a vehicle that was rear-ended by another vehicle causing low back pain.  The Veteran stated that after the motor vehicle accident he sought private treatment however he was told that such records are not available.  He also testified to having continuous low back pain since service.

The Veteran is competent to report continuous symptoms since service, see Washington v. Nicholson, 21 Vet. App. 191, 195 (2007), and his statements have been credible and consistent with the evidence of record as well as the circumstances of his service.  See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record).  

The Board also accepts that the Veteran is competent to report certain types of in-service injuries and symptoms which are capable of lay observation.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Here, the Board finds that the Veteran is competent to report that his low back pain began after a motor vehicle accident, and that it has been continuous from that time to the present.  There is no reason to doubt the credibility of the Veteran's reports, particularly given the consistency of his statements in March 2012 Correspondence and at the August 2016 Board hearing, in addition to contemporaneous medical records.

The evidence of records shows a current low back disability, an in-service injury, lack of complaints on separation examination, and competent and credible lay testimony of continuing back symptoms supported by the evidence of record.  In light of this evidence, a request for a VA examination and opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible.  Mariano v. Principi, 17 Vet. App. 305, 312 (2003); 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination").  The evidence is at least evenly balanced as to whether the Veteran's current low back disability had its onset in service.  As the benefit of the doubt doctrine requires that the reasonable doubt created by this relative equipoise in the evidence be resolved in favor of the Veteran, entitlement to service connection for a lumbar degenerative changes and retrolisthesis is warranted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  See also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008) (lay evidence may suffice to prove service connection on its own merits); Caluza v. Brown, 7 Vet. App. 498, 505 (1995) ("Lay evidence may provide sufficient support for a claim of service connection . . . .").



ORDER

Entitlement to service connection for lumbar degenerative changes and retrolisthesis is granted.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs