Citation Nr: 1753029 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-27 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for degenerative changes in the lumbosacral spine at L4-L5. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and a VFW Service Officer ATTORNEY FOR THE BOARD M. Elliot Harris, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1977 to June 1984. In September 2014, the Veteran testified at a hearing before a Veteran's Law Judge (VLJ) of the Board. The transcript is of record. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a September 2012 rating decision of the VA Regional Office (RO) in Philadelphia, Pennsylvania. In June 2015 the Board remanded this matter for additional development. Service connection for a lumbosacral strain was granted in that document. This appeal was processed using the Legacy Content Manager Documents and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. FINDING OF FACT It is as likely as not that the degenerative changes at the L4-L5 had their onset during service. CONCLUSION OF LAW With resolution or reasonable doubt in the Veteran's favor, degenerative changes of the L4-L5 were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West); 38 C.F.R. § 3.159(b) (2017). A standard March 2012 letter satisfied the duty to notify provisions. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(c) (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Veteran's service treatment records (STRs) have been obtained and the Veteran has received treatment at VA health care facilities. All records of private treatment that could be obtained have been. The VA records have been obtained. The Veteran was afforded a VA examination connected with the claim most recently in June 2017 which includes an opinion as to the etiology of any current degenerative changes in the lumbosacral spine at L4-L5 and its relationship to his period of service. Earlier examinations were also conducted. As noted above, the Board remanded this matter in June 2015. Specifically, the Board directed that a new VA examination and supplemental statement of the case (SSOC) be prepared and sent to the Veteran if the matter remained denied. A review of the Veteran's claims file shows that he was provided an updated SSOC in June 2017. As the requested development has been completed, all remand requirements have been met to make a determination on the Veteran's mental disorder and the case may move forward without prejudice to the Veteran. Stegall v. West, 11 Vet. App. 268, 271 (1998). SERVICE CONNECTION FOR LUMBAR SPINE DEGENERATION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). "To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The first element of Shedden is established for this claim because the record clearly demonstrates that the Veteran has degenerative changes in the lumbosacral spine at L4-L5. A recent June 2017 VA examination notes a diagnosis of degenerative changes in the lumbosacral spine at L4-L5. The dispositive question is whether the Veteran's degenerative changes in the lumbosacral spine at L4-L5 is related to disease or injury that is the result of service. The Veteran's essential contention here is that he currently suffers from degenerative changes in the lumbosacral spine at L4-L5 that is related to his period of active duty. The Board acknowledges that the Veteran's STR's repeatedly reported injuries to his lower back during his period of active duty. Shortly after entry from September 1979 to the Veteran's discharge examination on May 1984 The Veteran's STR's note the medical issues of lower back pain, lower back strains, back spasms, chronic back pain, and lumbar strains. However STR's reveal that on a June 1981 x-ray of the Veteran's lumbar spine the examiner noted that the x-rays were normal. On a June 1983 x-ray of the Veteran's lumbar spine, STR's reveal that the Veteran has a lower back strain. The examiner however noted that x-rays of the lumbar spine show no fracturing or dislocation. As mentioned above the Veteran's separation examiner only noted a lower back strain at separation. There are some complaints of pain down the legs in the STRs. During the Veteran's September 2014 hearing, the Veteran testified that while in-service, he began suffering from lower back pain during a hand to hand combat exercise in basic training. The Veteran testified that he felt his lower back pop while attempting to flip a soldier over his soldier. The Veteran testified that since this in-service event, he has had chronic back pain since. Upon separation from the military the Veteran testified to having undergone three surgeries on his lumbar spine on September 1985, a year later in 1986, and another one in the summer of 1999. The Veteran asserted in the hearing that attempts to obtain the records or x-rays from his surgery's failed, because the records had been destroyed. On a July 2012 VA examination of the Veteran's lumbar spine, the examiner noted severe degenerative changes of the lumbosacral spine, particularly at L4-L5. However the examiner noted that based on a review of the Veteran's STR's and physical examination, the degenerations of his lumbar spine in his L4-L5 discs are not related to his military service as the Veteran's x-rays show a normal spine during his service. The examiner also noted that muscle strains do not lead to arthritis based on a review of the evidence and medical literature. On a November 2016 VA examination, the examiner noted that the Veteran's functional limitation as abnormal or outside of normal range. The examiner also noted multilevel spondylotic changes of the Veteran's lumbar spine observing the most prominent levels are at L4-L5 and L5-S1. The examiner also noted L4-L5 neuroforaminal narrowing and right L4 and L5 hemilaminectomies with posterior decompression. The examiner also noted that he found multiple STR's entries from 1979 through 1984 for evaluation of Veteran's back pain. At separation, a comment on Veteran's separation examination dated May 1984 states in summary that the condition of the Veteran's back pain was, "Fair--on medication for back". The examiner also noted that while plain x-rays were negative, no MRI or myelogram was done. The examiner noted that the Veteran reports that he had a laminectomy September 1985. He identified the name of the neurosurgeon who is still in practice. The examiner called his office and though no records are available the examiner notes that the Veteran's precise description renders his history plausible. The examiner also noted that although the separation spine examination on May 1984 was noted to be normal, the accompanying note on the STR's also notes, "low back pain on meds". The examiner noted that a normal brief separation examination does not preclude a waxing and waning disc problem. The examiner noted that the fact that the Veteran had a laminectomy 15 months after separation strongly lends credence to the diagnosis of a lumbar herniated disc producing repeated symptoms during military service with progression soon after discharge. Despite the absence of interim documentation the examiner opined that he finds the Veteran's description of events plausible for a herniated disc during military service. On a June 2017 VA examination the examiner noted that the Veteran suffered severe degenerative changes of the lumbosacral spine, particularly at L4-L5. However, the examiner noted that the Veteran's degeneration of his lumbar spine is not due to or a result of a lumbar strain. The examiner noted that there is no evidence based on literature that degenerative disease of the lumbar spine at L4-L5 is proximately due to or the result of a lumbar strain in-service. There was no reference to the in-service findings of pain in the legs, nor was there any discussion of the November 2016 examination. The Veteran contends that he initially injured his lumbosacral spine in an in-service accident. The Veteran asserts that he has experienced chronic pain since that time. The record reflects a current disability of degenerative changes in the lumbosacral spine at L4-L5. The record also confirms the Veteran's account with respect to several documented in-service chronic lower back pain and in-service accidents in his STR's. The Veteran's STR's above from that period reflect ongoing complaints of chronic lower back pain. The Veteran's STR's above also show the Veteran's chronic lower back pain and symptoms continued. Post-service records also show continuing chronic back pain and symptoms. The Veteran has been consistent during the appeal period in attributing his degenerative changes in the lumbosacral spine at L4-L5 to the in-service injury of his lower back. Furthermore, the record contains a competent and credible lay statement from the hearing, indicating the Veteran has been in constant pain since his in-service injuries to his lower back, adding that the Veteran in the wake of his in-service injuries to his lower back underwent three surgeries, medication, and extended periods of inactivity as medical treatments while consistently complaining of chronic lower back pain. The Board acknowledges the record is nearly bare of a positive nexus opinion furnished by a treating or examining provider. The Veteran did receive an recent VA examination on June 2017 in which the examiner's conclusory statement that the Veteran's degenerative changes in the lumbosacral spine at L4-L5 is not service connected does not account adequately for the evidence of continuing symptoms charted in the STR's, his early diagnoses of chronic back pain and after the Veteran's traumatic in-service injury to his lower back, nor for his consistent and credible complaints of ongoing lower back pain since that time. Moreover, as noted there was no discussion of the complaints of pain into the legs in service, nor was the positive rationale of the November 2016 examiner discussed or differentiated. The Board finds that the evidence is in relative equipoise with the claim as to whether the Veteran's current disability of degenerative changes in the lumbosacral spine at L4-L5 is related to service. In that regard, the law is clear. Pursuant to the "benefit-of-the-doubt" rule, "where there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter" the Veteran shall prevail upon the issue. 38 U.S.C.A. § 5107 (West 2014). ORDER Entitlement to service connection for degenerative changes in the lumbosacral spine L4-L5 is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs