Citation Nr: 1755059 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-12 381 ) 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 disorder. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 2002 until August 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2016, the Veteran presented testimony before the undersigned Veterans Law Judge at a Travel Board hearing. A copy of that transcript has been associated with the claims folder. In September 2016 the Board reopened the Veteran's claim of entitlement to service connection for a low back disorder, and remanded the service connection claim for further development. The matter has since been returned to the Board for further appellate review. FINDING OF FACT The Veteran's lumbar spondylosis is etiologically related to his period of active duty service as a superimposed disease or injury on the congenital S1 posterior fusion defect. CONCLUSION OF LAW The criteria for service connection for lumbar spondylosis are met. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 5103 (2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2017). In addition, service connection for certain chronic diseases, including forms of arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA distinguishes between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. See VAOPGCPREC 82-90, VAOPGCPREC 67-90. A defect differs from a disease in that a defect is "more or less stationary in nature", while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90. In this regard, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries." 38 U.S.C. §§ 1110, 1111 (2012); 38 C.F.R. § 3.303(c) (2017); Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). However, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence of the record; every item of evidence does not have the same probative value. When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service treatment records (STRs) show that in a January 2002 report of medical history, the Veteran denied having recurrent back pain or any back problem. The Veteran's entrance examination reported normal findings for the spine. A January 2003 STR documents the Veteran had a consult placed for right sided back discomfort and S1 joint tenderness. The impression was congenital posterior fusion defect at S1, otherwise normal study. In February 2003 the Veteran was treated for lower back pain. The Veteran gave a history of injuring his lower back the prior month when he slipped off a vehicle. It was noted that the Veteran's first back problem had lasted a month with no improvement from conservative therapy. The Veteran was assessed as having mechanical lower back pain possibly related to an S1 fusion defect. March 2003 physical therapy notes reported that the Veteran had lower back pain for the prior three months following a fall. It was further reported that the Veteran had no complaints of back pain prior to November 2002. March 2003 x-rays were significant for an exaggerated lumbar lordosis with increased acute angulation of the lumbosacral junction, but otherwise normal. An April 2003 Medical Board Proceedings Report indicated that the Veteran had mechanical lower back pain since November of 2002 that did not exist prior to service. At that time the Veteran reported intermittent episodes of low back pain that had their onset following a November 2002 fall. Physical examination of the back showed findings within normal limits, and x-ray testing revealed no gross abnormalities. The Veteran was diagnosed with mechanical low back pain. A January 2009 private medical record from Dr. SS notes that the Veteran had a history of fracture and intermittent pain following a fall in 2002, and reporting diagnoses of spondylosis and disc protrusion of the lower back. A January 2009 MRI report showed spondylosis with disc protrusion at L5-S1 and L4-L5. In his September 2009 application for compensation, the Veteran reported that while he was on active duty in Germany he slipped and fell on ice and injured his back. He reported being treated at Schweinfurt Army Post Medical Facilities. He stated that he continued to have problems with his back. November 2009 private treatment records from Dr. WF noted that the Veteran had low back pain with a history of S1 fracture in the military, and spondylosis with disc protrusion. A February 2010 consultation report by Dr. WF documented a history of the Veteran slipping and falling around 2002 or 2003 and injuring his L5-S1 area. The Veteran was referred for orthopedic evaluation with a diagnosis of lower back pain with history of S1 fracture and spondylosis with disc protrusion at L5-S1. The Veteran underwent a VA spine examination in November 2010. At that time the Veteran reported that he fell off a vehicle in service. The Veteran reported that he was treated for this condition by his primary care physician and that he took over the counter medications. The Veteran endorsed chronic symptoms of pain and stiffness occurring daily. X-ray testing was significant for mild exaggeration of lumbar lordosis and suggested disk narrowing in the lumbar spine. The examiner diagnosed mechanical low back strain. The examiner then opined that the Veteran's back condition was likely unrelated to his period of service. In support of that opinion, the examiner noted that the Veteran's service records indicated that the Veteran injured his low back from a fall off a truck and was evaluated for a back pain one month later in February, at which time he was given a physical profile. There was no other evidence relating to a back condition in service, and the examiner reasoned that there was no evidence of a significant abnormality to indicate any chronic disability as a result of the in-service back injury. Thus, the examiner concluded the currently diagnosed mechanical low back strain was unrelated to the in-service back injury. The Board finds the opinion of the 2010 examiner to be inadequate, as it is internally inconsistent and failed to consider the Veteran's competent statements regarding continuity of symptomatology since service. First, although the examiner noted ongoing treatment for back pain, chronic symptoms, and diagnosed mechanical low back strain; the examiner nevertheless reached the seemingly contradictory conclusion that there was no evidence of a significant abnormality to indicate a chronic disability related to the in-service back injury. In this regard, the examiner also failed to adequately consider the Veteran's competent lay statements regarding onset and continuity of symptomatology. At the June 2016 VA Board hearing, the Veteran testified that prior to his in-service back injury, he had no back problems. He reported that during a mortar training in Germany, he slipped ice while running with a rucksack, and landed on his back on the frame of the rucksack. The Veteran reported that when returning to base, he began to feel extreme pain in his back. He described undergoing x-ray testing and being told that he had broken his back in two places. The Veteran reported that since that time he continued to have lower back symptoms. A June 2016 record from Dr. WF documented the Veteran gave a history of an old back injury from when he was in service. The Veteran reported it was around the year 2002 or 2003 when he slipped and fell and injured his L5-S1 area. While he was medically discharged for a different condition, the Veteran reported that his back pain was not addressed and had plagued him long term. The impression was chronic low back pain with documented history of spondylosis and disc protrusion at L4-5 and L5-S1. The Veteran underwent another VA examination in December 2016. In clarifying the Veteran's back diagnoses of record, the examiner stated that in-service the Veteran was diagnosed with "congenital posterior fusion defect at S1, lumbar strain, and sciatica, resolved, no residuals," and that his current diagnosis was lumbar spondylosis at L4-L5, and L5-S1. At the time of the examination, the Veteran reported that he continued to experience back pain with intermittent radiation to both legs. The examiner found a diagnosis of congenital posterior fusion at S1 according to March 2003 x-rays, which was a defect rather than a disease, defined as a structural or inherent abnormality or condition that was more or less stationary in nature. The examiner then opined that the congenital posterior horn fusion defect was subject to a superimposed injury when the Veteran fell in service 2003 as evidenced by STRs showing a diagnosis of mechanical low back pain possibly related to S1 fusion defect. The examiner opined that the Veteran's current lumbar spondylosis was not related to the in-service lumbar strain. The examiner explained that while back strain involves the muscles and ligaments of the spinal region, lumbar spondylosis is a degenerative process involving the discs and vertebral bodies. The examiner stated that back strain did not cause degenerative disc disease. Essentially, the examiner opines that the superimposed injury to the congenital defect was mechanical back strain that resolved, and currently diagnosed lumbar spondylosis is not etiologically related to the in-service back strain. Again, the VA examiner did not consider or address the Veteran's reports of onset and continuity of symptoms that is also reflected in the treatment records. The Veteran's consistent reports of onset of back symptoms in 2002 - 2003 and ongoing symptoms since that time directly contradicts the examiner's conclusion that the Veteran's in-service back injury resolved. Resolving all doubt in favor of the Veteran, the Board finds that entitlement to service connection for a lower back disorder is warranted. First, the Veteran has a current diagnosis of lumbar spondylosis. See January 2009 MRI Report. Second, there is a documented in-service lower back injury, and persistent back pain thereafter. See January 2003 through April 2003 STRs. The Veteran is competent to identify his symptoms, and his statements are credible as they are consistent and corroborated by other evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006). Third, the evidence supports a finding that the Veteran's back pain symptoms first had their onset during the Veteran's period of service. In-service treatment records show the Veteran denied any back pain prior to November 2002. The STRs from 2003 show ongoing symptoms of back pain. The Veteran has testified that he has experienced continuous back symptoms since his in-service fall. The 2016 VA examiner also documented that the then-diagnosed congenital posterior fusion defect was subject to a superimposed injury when the Veteran fell that resulted in additional disability of mechanical back pain. Although the examiner then concluded that an in-service lumbar strain did not cause the currently diagnosed lumbar spondylosis, the examiner failed to address the Veteran's testimony regarding onset of continuity of symptoms, and therefore the opinion is not probative. Instead, the Board finds that the in-service incurrence of lower back pain symptoms, (due to a superimposed injury that caused additional disability) supported by a later diagnosis, together with the Veteran's credible testimony regarding onset and continuity of symptoms is sufficient to establish a nexus between his currently diagnosed lumbar spondylosis and his period of active duty. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). At minimum, the evidence for and against the Veteran's claim is in equipoise and reasonable doubt must be resolved in his favor. Thus, entitlement to service connection for lumbar spondylosis is warranted. 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2017). ORDER Entitlement to service connection for lumbar spondylosis is granted. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs