Citation Nr: 1801738 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-34 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a lumbar strain to include spondylosis and degenerative disc disease (claimed as a back disorder). 2. Entitlement to service connection for a leg disorder, claimed as pain secondary to a back disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. I. Tissera, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1950 to January 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In October 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, the evidence demonstrates that his current lumbar strain is etiologically related to his active duty service. 2. The Veteran does not have a current diagnosis for a leg disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar strain have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. A leg disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The duty to notify has been met. Neither the Veteran nor his representative has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Board notes that all of the Veteran's service records were destroyed in the 1973 National Personnel Records Center (NPRC) fire. VA has a heightened duty to assist the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005), citing Russo v. Brown, 9 Vet. App. 46 (1996). See also Cuevas v. Principi, 3 Vet. App. 542 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA examinations in March 2013 and March 2016. The examinations were adequate. The examiners reviewed the medical evidence of record in conjunction with the examination, and conducted a thorough medical examination of the Veteran. The Veteran's pertinent symptomatology was recorded sufficiently to accurately adjudicate the claims. Based on the foregoing, the Board finds the examination reports to be thorough, complete, and sufficient base upon which to reach a decision on the Veteran's claims. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007). Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied. II. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). See also Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). A. Lumbar Spine The Veteran's medical treatment records indicate he has diagnoses for spondylolytic changes throughout his lumbar spine associated with degenerative disc disease and advanced degenerative facet arthritis. The Veteran's service treatment records (STRs) note a back sprain in February 1952. The examination reports that the curvature of the Veteran's lumbar spine was considerably straightened, with loss of normal lordosis. The Veteran was afforded a VA examination in March 2016. The examiner confirmed the Veteran's back diagnoses. The examiner opined that the Veteran's low back pain related to degenerative disc disease and degenerative facet arthritis with multilevel neural foraminal narrowing with spinal canal stenosis at L3-4 and L4-5 are less likely than not incurred in or due to or a progression of the documented back issues of lumbar strain and spondylolisthesis L5-S1 noted during his active military service. In support of the opinion, the examiner stated the Veteran's current spondylolytic changes throughout his lumbar spine associated with degenerative disc disease and advanced degenerative arthritis are related to aging. Spondylolisthesis involves anterior displacement of a vertebral body due to bilateral defects of the posterior arch and a large majority of patients recover completely with conservative treatment. Furthermore, the Veteran was assigned back to full duty in 1952. In October 2017, the Veteran testified at the Board hearing that after his back injury, he was assigned to light duty for a month. During this time, he became the company's clerk. Although the Veteran was returned to duty after the one month, he remained in the clerk capacity and was not required to lift anything heavy, even though his back hurt during that time. He testified he continued to feel back pain after his separation from service, but did not seek medical treatment, believing that, as a young man, he could be self-sufficient and put up with the pain. When the Veteran sought medical treatment for leg pain in 1956, the doctor told him that the nerves in his back were pinched and a particular nerve caused his leg to hurt. The Veteran testified the pain is still there, since the injury in service. The Veteran is competent to report the events that occurred in service, as well as the onset and nature of his lumbar pain symptoms. Layno, 6 Vet. App. at 469. In the instant case, the Veteran has consistently asserted that his back pain began in service and has continued ever since that time. The Veteran is also competent to testify about observable symptoms or injury residuals. Thus, the Veteran is competent to state that his lumbar strain began during service, and that he has continued to experience back pain since service to the present. The Board finds that there is sufficient persuasive evidence of record to establish the presence of lumbar strain and likely continuity of symptoms from the time of service until the present. 38 C.F.R. § 3.303(b). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Here, the Board finds that the Veteran's assertions regarding the onset of his lumbar strain and continuity of symptoms since service are credible. His STRs show a radiographic report, noting the curvature of the lumbar spine was considerably straightened, with loss of the normal lordosis. His January 1953 discharge exam noted a normal spine and musculoskeletal system, but also noted the February 1952 back sprain. He has consistently stated that he experienced back pain during service and experiences it today, and there is no persuasive evidence of record indicating that the Veteran's statements are not credible. In sum, the Veteran has consistently provided competent and credible evidence that he has had continuous symptoms of lumbar strain since his discharge from active duty service, and the Board finds no reason to question the veracity of such statements. Charles, 16 Vet. App. 370; Hayes v. Brown, 5 Vet. App. 60 (1993). These statements, when viewed in relation to the Veteran's injury in service, are entitled to significant probative weight, and thus, are sufficient to establish the presence of lumbar strain and a likely continuity of symptomatology from service to the present. Cf. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102; see also 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53-56. Given the facts noted above, and resolving any reasonable doubt in favor of the Veteran, the Board concludes that the criteria for service connection for lumbar strain to include spondylosis and degenerative disc disease are met. B. Leg Disorder, Secondary to Lumbar Spine The Veteran contends that service connection is warranted for a leg disorder, claimed as pain secondary to a back disorder. The Veteran's STRs do not show any complaints, treatment, or diagnosis for a leg disability. The Veteran does not have any post-service medical records that show any complaints, treatment, or diagnosis for a leg disability. In March 2013, the Veteran was afforded a VA examination. The examiner did not find a diagnosis for a leg disability, including peripheral neuropathy. No symptoms were found that could be attributed to any peripheral nerve condition. The Veteran does not have muscle atrophy. Although the Veteran's gait is slow, it is due to a slightly flexed lumbar position. The lower extremity nerves were found to be normal. The Veteran's leg disorder does not impact the Veteran's ability to work. The examiner opined that the Veteran's leg disorder is less likely than not proximately due to or the result of the Veteran's back disability. This opinion is based on the fact that the Veteran's leg disorder is not due to lumbar radiculopathy but bilateral knee arthritis. A 2012 MRI of the lumbar back showed severe spondylosis, lumbar stenosis, and marked narrowing neuroforamina. This corresponds with the Veteran's symptoms of leg pain, "pseudoclaudication," and back discomfort, but it is not due to the lumbar strain from 1952. As such, the Veteran does not have a current diagnosis for a leg disorder. The Veteran testified via videoconference before the Board in October 2017. He testified that after his discharge from service in 1953, he was seen by a doctor regarding his leg pain in 1956. The Veteran stated that the doctor informed him that his nerves were being pinched in his back, causing his leg to hurt. The Veteran then testified that his leg does not bother him. At the conclusion of the Board hearing, the Veteran' representative requested a new VA examination be entertained to provide an opinion as to whether or not the Veteran has a diagnosed leg disorder or if it is related to his time in service. The Board finds the March 2013 VA examination probative and adequate, and addresses the questions posed by the Veteran's representative at the conclusion of the Board hearing. Ultimately, there is no medical evidence showing a diagnosis for a leg disorder. While the Veteran is competent and credible to testify about a contemporaneous medical diagnosis in 1956, there is no evidence that the leg pain has been continuous since that time. In fact, when the Veteran was asked during the hearing whether he had issues with his leg since that time, and he testified that his leg does not bother him. Therefore, there is no evidence to support a current diagnosis for a leg disorder. Thus, the Board finds that the weight of the evidence shows that service connection for a leg disorder claimed as pain secondary to a back condition is not warranted, and the claim must be denied. As the preponderance of evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for lumbar strain to include spondylosis and degenerative disc disease is granted. Service connection for a leg disorder, claimed as pain secondary to a back condition, is denied. ______________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs