Citation Nr: 1756817 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-06 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for back condition, to include as secondary to service-connected left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. D'Allaird, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1987 to January 1991 and from October 1997 to January 2006. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a June 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a March 2017 Travel Board hearing before the undersigned Veterans Law Judge. A transcript is of record. FINDING OF FACT It is reasonably shown that the Veteran's currently diagnosed degenerative joint disease began in service and has persisted since that time. CONCLUSION OF LAW Service connection for a back disability, diagnosed as degenerative joint disease, is warranted. 38 U.S.C.A. §§ 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Any error in notice or assistance is harmless given the favorable determination. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or does not show, as to the claim. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Briefly, requirements for a successful secondary service connection claim are evidence of: (1) a current disability for which secondary service connection is sought; (2) a disability which is service connected; and (3) that the service connected disability caused or aggravated the disability for which secondary service connection is sought. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999). It is not in dispute that the Veteran has been diagnosed with degenerative disc disease. (See, e.g., February 2012 VA examination.) The Veteran states that his back disability was incurred in service and aggravated by his service-connected left knee disability. Service treatment records (STRs) dated in February 1987 reflect the Veteran reported back pain after heavy lifting in the galley. A mild lattisimus back strain was diagnosed. In STRs dated in September 1990 the Veteran again reported back pain and mild tenderness in the left and right paraspinous muscles was noted. VA treatment records dated in March 2007 note the Veteran was in a car accident and was experiencing back pain following the accident. The Veteran's Form DD214 reflects his military occupational specialty (MOS) was ordnanceman. During the March 2017 hearing the Veteran stated that part of his duties included hand loading bombs that weighed between 1 and 1,000 pounds. The Veteran submitted a description of his MOS which stated that each weapon weighs between 100 and 1,000 pounds "and [is] often loaded and unloaded by hand several times per day." The Veteran also stated during the March 2017 hearing that his back pain began in service and continued throughout and following service. He stated that the 2007 car accident further exacerbated his already existing back pain. He testified that his back pain is reoccurring, rather than constant. The Veteran also testified that he had been told by VA doctors that his back disability was caused by his left knee disability which causes him to shift his weight to his right side when walking. The Veteran is already in receipt of service connection for a left knee disability. Thus, in light of his statements, the Board would generally be obliged to consider his instant claim on both a direct and a secondary basis. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (holding that the Board is required to weigh all theories of entitlement raised either by the claimant or by the record as part of the non-adversarial administrative adjudication process). Nevertheless, given the particular circumstances of this case, the Board finds that direct service connection for degenerative disc disease is warranted and, thus, for the sake of judicial economy will confine its analysis to that specific theory of entitlement. The Board finds the Veteran's statements that his disability began in service and has continued since then to be competent and credible. The Veteran has a current disability, degenerative disc disease, thus satisfying the first element of service connection. The evidence also supports an in-service event, his lifting of heavy weaponry and related reports of back pain, satisfying the second element of service connection. Finally, the Veteran has reported that his symptoms have continued since service and thus satisfies the third element of service connection, a nexus. The Board notes that the Veteran was afforded a VA examination in February 2012 and an addendum opinion was obtained in November 2013. The February 2012 examiner provided an opinion only as to whether his disability was related on a secondary basis to his service-connected knee disability and did not discuss the impact of an altered gait. The November 2013 examiner opined that his disability was less likely than not related to his service because his degenerative disc disease was due to wear and tear that occurs with aging. Neither examiner considered the Veteran's lay statements regarding the continuity of symptoms since service. Furthermore, the Veteran provided further explanation during the March 2017 hearing as to the car accident noted in VA treatment records and how that accident aggravated his existing disability. Therefore, the Board finds these opinions inadequate and does not consider them to be probative evidence in this matter. The Board finds that competent, credible, and probative evidence establishes that the Veteran's degenerative disc disease was incurred during the Veteran's active service and the Veteran is therefore entitled to service connection. ORDER Entitlement to service connection for back disability, diagnosed as degenerative disc disease is granted. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs