Citation Nr: 1754906 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 09-23 437A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active duty service from February 1976 to February 1992. This matter came back before the Board of Veterans' Appeals (Board) on Remand from the United States Court of Appeals for Veterans Claims regarding a Board decision rendered in August 2012. This matter is now before the Board following Board Remands in October 2014 and September 2016. This matter was originally on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas. In May 2012, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. In September 2017, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA) with respect to the etiology of the Veteran's lumbar spine disorder. In November 2017, the Board received such opinion. Because the claim is granted in full, no prejudice to the Veteran results from the Board's consideration of his claim. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the Veteran's current lumbar spine disorders, lumbar degenerative disc disease with spondylosis, are related to his active duty service. CONCLUSION OF LAW Lumbar spine degenerative disc disease with spondylosis was incurred in active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In light of the favorable outcome of this appeal, any perceived lack of notice or development under the VCAA should not be considered prejudicial. The Veteran contends that he is entitled to service connection for lumbar spine disability as he believes that this disability originated during his active duty service. At the May 2012 Board hearing, the Veteran testified that he first injured his back in 1978 when he picked up a field radio that bounced in the jeep; he was treated with muscle relaxers and he was put on a three-day leave pass. He testified that in the mid-1980s, while working as an animal care specialist, he again injured his back picking up a St. Bernard; he was seen by an Air Force physician's assistant who diagnosed him with a sprain, have him painkillers and muscle relaxers. The Veteran testified that off and on throughout his career, he had problems with his back. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases (including arthritis) manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. To prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran's service treatment records indicate that in November 1978 he complained of back problems for a few hours and noted that the pain was on the lower right side. On physical examination, the Veteran had severe pain when straightening up and twisting in certain position. The Veteran was referred for consultation. He was seen again about a half hour later and complained of sharp back pain when getting up from a sitting position and when twisting to the right as well as a dull throbbing pain in his back when resting. He stated that the pain occurred suddenly at noon that day. Physical examination demonstrated that he had a normal gate and no weakness or numbness in lower extremities. There was a palpable spasm right lower back. In January 1985, the Veteran reported a history of low back pain for 4 weeks. He was unsure of any history of trauma. Physical examination demonstrated normal curvature, full range of motion with moderate discomfort over spinous process. Palpation was nontender. Paravertebral muscles with mild spasm and tenderness in the lumbar area. Straight leg raising was negative, and there was no neurologic deficit noted. Assessment was lumbar strain. A January 1985 physical therapy consultation report notes chronic low back problem. On physical examination there was tenderness with tightness of the left side of the lumbar area. On Report of Medical History completed by the Veteran in July 1987, he reported recurrent back pain; the physician noted muscle strain in 1978 but no problem at present. Clinical evaluation of the spine was normal. The Veteran reported recurrent low back pain on his Report of Medical History completed in conjunction with his separation examination in January 1992 and noted that he injured his back twice. Clinical evaluation of the spine was normal. Following service, on VA examination in March 1992, the Veteran reported that he initially injured his lumbosacral area while lifting in 1977 and that he reinjured his lumbar area in the mid-1980s. At the time of the examination, he indicated that his back was doing relatively well. Examination of the lumbar spine revealed normal lumbosacral curvature with good range of motion. An x-ray of the lumbar spine was normal. The examiner diagnosed a history of lumbosacral sprain without history of or clinical evidence of neurological impairment. The Veteran underwent VA examination in May 2008 at which time he was diagnosed as having mild lumbosacral degenerative changes without lower extremity radiculopathy. The examiner, an orthopedic surgery physician's assistant, provided an unfavorable opinion, but did not provide rationale for his opinion. He essentially noted that there was no evidence to support the claim. On VA examination in November 2011, the Veteran was diagnosed as having degenerative disc disease and degenerative joint disease. The examiner, a primary care physician, provided an opinion that it was less likely as not that his lumbar spine disorder was caused by or the result of treatment received in service or right knee condition but more in keeping with nature age progression. On VA examination in January 2016, the Veteran was diagnosed as having spondylosis without myelopathy. The examiner, a preventative medicine specialist, provided an opinion that the lumbar spondylosis was not caused by service or service-connected conditions. The examiner noted, "As per medical literature- condition is the inevitable consequence of aging, regardless of race, profession, military service or [history] of trauma. Unable to determine functionability based on today's examination, however, patients with similar radiological findings and diagnosis normally have a full ROM, which is consistent with findings on C&P examination from 2011. Veteran extreme symptomatology is inconsistent with the known medical diagnosis and radiological findings, and may occur as a result of blunted intellect, mental illness, cognitive dysfunction, or even feigning." In November 2016, an additional opinion was obtained from an internal medicine physician who stated that it was as likely as not that the Veteran's continuing low back symptoms - pain and stiffness, tingling, electric sensation in the lumbosacral juncture with tingling, numbness and radiation, low back pain radiating down lower extremities after service are caused by or a result of lumbar spondylosis because these symptoms are consistent with extent of spondylosis on the MRI of his lumbar spine. The examiner noted that it was less likely as not that the findings of his condition in service would cause continuing symptoms or chronic symptoms, because ETS physical and March 1993 VA examination physical were silent for any findings of the in-service lumbar condition. The examiner noted that it was less likely as not that his condition is caused by or a result of symptoms of or diagnosis of lumbar strain during service irrespective of aging process, because service treatment records are silent for this condition. The examiner explained that everyone with chronic or recurrent back pain had a first episode of back pain and that it did not necessarily make the initial episode or episodes related to the later chronic condition. The examiner noted that while back sprain or strain involved the muscles and ligaments (soft tissues) of the spinal region, spondylosis was a degenerative process involving the discs and vertebral bodies and that one was not the cause of, or related to, the other. The examiner noted, however, that individuals often remembered an episode "where it all began," despite the lack of a medical nexus. In September 2017, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA) with respect to the etiology of the Veteran's lumbar spine disorder. In November 2017, the Board received such opinion authored by an orthopedic spine surgeon. After review of the file, the physician stated, a) The diagnosis pertaining to the lower back in service is Lumbar Strain. The lower back occurred in 1978 when he picked up a radio that bounced in the jeep. The injury in 1985 occurred when he picked up a St. Bernard causing the back to twist and pop. Due to these injuries, the lower back condition could likely be continuing or chronic. b) The Current Lower Back Diagnosis is Lumbar Degenerative Disc Disease with Spondylosis. This was reported on the X-rays done of the lumbar spine on 5/20/08. c) The etiology of the continuing back symptoms the Veteran experienced after service is the Lumbar Degenerative Disc Disease with Spondylosis. d) It is at least as likely as not the current lower back disability relates back to or is traceable to the symptoms and diagnoses reported during service. The lumbar strain during service predisposed the lumbar spine to the development of degenerative disc disease and spondylosis. e) There are no current low back disorder that is more likely than not of post service onset. The Veteran's description of paralysis of the right leg in 1993 lasting for 6 months is also related to the lumbar strain that has progressed to lumbar degenerative disc and spondylosis. The Board notes that there is a difference of opinion among the medical professionals. In deciding whether the Veteran's current lumbar spine disorder is related to his military service, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id. The Board finds the medical expert's opinion to be probative and supported by well-reasoned rationale. As such, any reasonable doubt that may exist in light of contrary opinions of record must be resolved in the Veteran's favor and the claim for service connection for lumbar spine degenerative disc disease with spondylosis granted. 38 U.S.C. § 5107 (b) (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a lumbar spine disability is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs