Citation Nr: 1740148 Decision Date: 09/18/17 Archive Date: 09/29/17 DOCKET NO. 04-38 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Kim, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1947 to September 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2008, the Veteran testified during a Board video-conference hearing before a Veterans Law Judge, who has since retired and is no longer employed by the Board. A transcript of that hearing is of record. In a December 2015 letter, the RO provided the Veteran an opportunity to appear before another Veterans Law Judge and informed him that if a response was not received in 30 days, the Board would assume that another hearing was not desired and that the appeal would proceed accordingly. No response was received. The Veteran later submitted a written brief in support of his claim. In August 2008, the Board denied entitlement to service connection for a low back disability. The Veteran subsequently appealed the August 2008 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2009 Order, the Court granted the parties' March 2009 Joint Motion for Remand (JMR), vacating the Board's August 2008 decision and remanded the appeal to the Board for readjudication consistent with the JMR. In May 2009, the Board remanded the case for additional development consistent with the March 2009 JMR. In June 2010, the Board denied entitlement to service connection for a low back disability. The Veteran subsequently appealed the June 2010 Board decision to the Court. In a March 2011 Order, the Court granted the parties' March 2011 JMR, vacating the Board's June 2010 decision and remanded the appeal to the Board for readjudication consistent with the JMR. In June 2011, the Board remanded the case for additional development consistent with the March 2011 JMR. In September 2012, the Board again denied entitlement to service connection for a low back disability. The Veteran subsequently appealed the September 2012 Board decision to Court. In a March 2014 Memorandum and Decision, the Court vacated the Board's September 2012 decision and remanded the appeal to the Board for readjudication consistent with the Memorandum and Decision. In October 2014, the Board remanded the case for further development consistent with the March 2014 Memorandum and Decision. In June 2016, the Board requested an expert medical opinion from the Veterans Health Administration (VHA) pursuant to 38 C.F.R. § 20.901 (2016). A response was provided later that month. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's currently diagnosed low back disability had its onset during active service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a low back disability are met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without competent and credible evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must consider that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran maintains that he has a low back disability as result of an injury sustained during service. Specifically, he has reported that in 1948, he injured his low back while unloading "500 lb. bombs" causing "sever[e] pain in [his] back" and that the resulting low back symptomatology continued since service. See August 2003 Statement from the Veteran. At the outset, the Board notes that the Veteran's service treatment records are believed to have been destroyed in a fire in July 1973 at the National Personnel Records Center facility. When, as here, the service records are lost or missing, through no fault of the Veteran, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist him in developing his or her claim. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As the record clearly documents the Veteran's current diagnosis of a low back disability, see June 2009 MRI report (documenting an impression of advanced degenerative changes in the lumbar spine), the remaining inquiry is whether such diagnosis is due to service. In the August 2003 statement, the Veteran wrote that treatment for the in-service low back injury was limited to "some time and rest as there was no solution to a back problem in those years." He also reported that "in 1950 or so[,] [he] contacted [a private physician] . . . [who] diagnosed a Ruptured Disc" after a conducting an X-ray examination. See August 2003 Statement from the Veteran; see also June 2008 Hearing Tr. at 3. The clinical evidence of record documents treatments for low back symptoms beginning in 1994. A November 2000 private treatment record documents the Veteran's report that his low back pain continued for "many years." A January 2004 private treatment note contains a diagnosis of degenerative disc disease of the lumbar spine. In a November 2004 statement, Dr. R.S.F., a private physician, opined that "[the Veteran's] current pain is associated with the injuries sustained in 1948" and that "[d]ue to chronicity of pain this would be the most likely source of his current malady." In a July 2009 statement, Dr. R.S.F. indicated that he treated the Veteran since February 1987 and that since that time, the Veteran has "exhibited frequent bouts of low back pain." The private physician noted that the Veteran was diagnosed with spinal stenosis at L3-L4 in 2004 and opined that the condition was "most likely originat[ed] from past injury . . . from the history of injury in 1948." In July 2008 and April 2009, VA received various lay statements on behalf of the Veteran from his family members and friends regarding his continued low back symptomatology since service. A September 2009 VA examiner rendered a negative nexus opinion and reasoned that the Veteran's low back disability ". . . did not require medical attention until the late 80's or so" and that there was "absolutely no evidence to connect his current low back disability to [his] active service." The opinion is has limited probative value as the examiner relied on the absence of documented treatment records and did not consider the Veteran's competent reports as to the in-service injury and continued low back symptoms since then. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). A December 2011 Disability Benefits Questionnaire (DBQ) examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine and rendered a negative nexus opinion for such condition. As rationale, she acknowledged the Veteran's account of in-service low back injury and found that such would have been "mechanical in nature," which did not support the current diagnosis of lumbar spine degenerative disc disease. Instead, the examiner attributed the current diagnosis to "aging and occupational stress." However, given the examiner's failure to consider the Veteran's competent report as to the 1950 diagnosis of a ruptured disc from a private physician, as the Court pointed out in the March 2014 Memorandum and Decision, her opinion is assigned limited probative value. See, e.g., Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In a September 2015 addendum opinion, the examiner opined that "it would now be purely speculative to assign service connection of the Veteran's lower back condition to an event that occurred over six decades prior" and in support, stated that the record was "[s]ilent for documentation of low back evaluation for over 35 years" and that there was "no diagnostic testing to confirm. . . [the diagnosis of] a 'ruptured disc.'" This opinion is also assigned limited probative value as the examiner relied on the absence of documented treatment records and did not consider the Veteran's competent reports as to in-service diagnosis of a ruptured disc. See Dalton v. Nicholson, 21 Vet. App. at 23 (2007). In the June 2016 VHA opinion, the examiner, a Board-Certified orthopedic surgeon, agreed with November 2004 and July 2009 opinions from Dr. R.S.F. and opined that that it is "at least as likely as not that the Veteran's current back condition . . . is causally related to the Veteran's service, to specifically include the claimed in-service back injury." The VHA examiner explained that the Veteran's report of in-service low back injury and the 1950 diagnosis of a ruptured disc were consistent with the current clinical evidence of record and specifically agreed with Dr. R.S.F.'s finding that "the current [low back] condition most likely originated from injury in service in 1948." Given the evidence and the medical opinion already of record, the Board concludes that the evidence is in relative equipoise as to whether the Veteran's current low back disability had it onset during service. The June 2016 VHA opinion serves to link the Veteran's current low back disability to in-service symptoms. In this regard, the June 2016 examiner determined that the Veteran's report of in-service low back injury and the reported 1950 diagnosis of a ruptured disc were consistent with the current clinical evidence of record and specifically agreed with Dr. R.S.F. that "the current [low back] condition most likely originated from injury in service in 1948." Given that the June 2016 VHA opinion was clearly based on full consideration of the record and the VHA examiner's significant expertise in clinical orthopedic surgery, the Board places great probative weight to the June 2016 VHA opinion. Therefore, given that the June 2016 VHA opinion is the most probative medical evidence of record and the Veteran has provided competent and credible reports of continuity of low back symptomatology, the Board resolves all reasonable doubt in his favor and finds that his current low back disability had its onset during service. Accordingly, service connection for a low back disability is warranted. In reaching this conclusion, the benefit of doubt doctrine has been applied where appropriate. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for a low back disability is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs