Citation Nr: 1804173 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 08-34 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to a service connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Timbers, Associate Counsel INTRODUCTION The Veteran served as a member of the United States Army, with active duty service from January 1975 through October 1995. This appeal comes to the Board of Veterans' Appeals ("Board") from a May 2007 rating decision by the Department of Veterans Affairs ("VA") Regional Office ("RO") in St. Petersburg, Florida. Jurisdiction over the matter presently resides with the RO in Houston, Texas (hereinafter Agency of Original Jurisdiction ("AOJ")). The Veteran's claim for entitlement to service connection for a low back disability has previously been before the Board. Most recently, in March 2016, the claim was remanded to the AOJ to allow the Veteran an opportunity to appear and testify before a Veterans Law Judge. See 38 C.F.R. § 20.700. Thereafter, the Veteran appeared and testified before the undersigned Veterans Law Judge, via videoconference hearing, in August 2016. A transcript of this hearing has been reviewed and associated with the Veteran's claims file. Following the August 2016 hearing, the Veteran's claim was returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). At this point, the Board requested a specialist medical opinion from the Veterans Health Administration ("VHA") to resolve ambiguities contained in the evidentiary record. See 38 C.F.R. § 20.901(a). In August2017, the Board secured and associated with the claims folder, the responsive specialist medical opinion. As the decision below is fully favorable to the Veteran, it is not necessary to provide an opportunity for the Veteran and his representative to respond to the VHA opinion. See 38 C.F.R. § 20.903. Rather, the Board will decide the matter expeditiously. See 38 U.S.C. §§ 5109B, 7112. This appeal was processed using Virtual VA and the Veterans Benefits Management System ("VBMS"). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's current low back disability, to include lumbar spondylosis and degenerative joint disease of the lumbar spine, began during, or were otherwise caused by, his active military service. CONCLUSION OF LAW The criteria for service connection for a low back disability, to include lumbar spondylosis and degenerative joint disease of the lumbar spine, has been met. 38 U.S.C. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107, 5109B (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 20.901 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act ("VCAA") must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The VCAA required notice provisions were accomplished by numerous letters, including those dated in February 2007 and December 2011, which informed the Veteran of the information and evidence not of record that is necessary to substantiate his claim, the information and evidence that the VA will seek to provide, and the information and evidence the Veteran is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The letters also informed the Veteran how disability ratings and effective dates are established. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise The Veteran was afforded the opportunity to appear and testify before the undersigned Veterans Law Judge ("VLJ") at a videoconference hearing, held at the RO in August 2016. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determinations and noted the elements of the claims that were lacking to substantiate the claims for benefits. The VLJ specifically noted the issues as including the issues listed on the title page of this decision. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. Based upon the above, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Moreover, the neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Lastly, the Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). General Laws and Regulations Governing Entitlement to Service Connection: In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Alternatively, VA regulations allow for a current disability to be service connected if the evidence of record reveals the Veteran has a current diagnosis that was chronic in service, or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). However, in Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an "organic disease of the nervous system" to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a)). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). That being the relevant, generalized, law applicable to the Veteran's claim, the Board finds that the evidence of record warrants a finding of entitlement to service connection for low back disability, to include the Veteran's spondylosis and degenerative disc disease, on a direct basis. First, following a review of the Veteran's medical records, the Board observes the Veteran has current diagnoses of lumbar spine spondylosis and degenerative disc disease. Therefore, the Veteran has satisfied the first element of service connection, the existence of a current disability. See 38 U.S.C. §§ 1110, 1131; See also Boyer, 210 F.3d 1351, at 1353. In making the above determination that the Veteran has two current low back disabilities, the Board has considered the Court's holding that when determining the scope of a claim, the Board must consider the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In other words, the Board has considered all of the Veteran's low back diagnoses of record. In this regard, Dorland's defines "spondylosis" as both "ankylosis of a vertebral joint; and also as "a general term for degenerative changes due to arthritis." See Dorland's Illustrated Medical Dictionary 1754 (32nd ed. 2012). As applied to the instant claim, the Board therefore considers the Veteran's current diagnosis of lumbar spondylosis to be encompassed within the current degenerative disc disease diagnosis. In short, the current disability, whether called lumbar spondylosis or degenerative disc disease of the lumbar spine, is established. Second, the Board finds that the Veteran's service treatment records ("STRs") document treatment for symptoms of low back pain throughout his lengthy military career. For example, the Veteran was hospitalized in February 1978 for symptoms of "severe" back pain. Thereafter, in November 1983, the Veteran sought additional treatment for complaints of low back which had been present for three weeks. Then, in February 1985, an examination of the Veteran's back reported that his right posterior superior iliac spine and iliac crest were lower than those on the left side of his spine. Additionally, this examination reported there was tenderness over the right sacroiliac joint and right lumbar paraspinous region. Additionally reports of "flared" lower back pain symptoms were made in 1989 and 1993. During the Veteran's May 1995 separation physical examination, it was noted that he suffered from lower back pain during his military service. Following his separation from military service, the Veteran continued to experience low back pain. For example, in January 2004, the Veteran sought treatment for lower back. Due to the chronic nature of the Veteran's low back pain, an magnetic resonance imaging ("MRI") of the lumbar spine was ordered. Results of this MRI identified degenerative changes throughout the lumbar spine, with a L4-L5 central disc protrusion causing bilateral neural foraminal narrowing. An August 2005 x-ray of the lumbar spine further identified degenerative changes with osteophytes anteriorly at L4-L5, with decreased disc height at L5-S1. Thereafter, a June 2010 MRI reported a right sided disc herniation at the L4-L5 level and diagnosed the Veteran with lumbar spondylosis. Given the above findings, the primary question before the Board is whether a nexus exists between the Veteran's in-service diagnosis and treatment for low back pain and his current diagnoses for lumbar spondylosis and degenerative joint disease of the lumbar spine. As noted in the introduction, the Board requested a VHA medical opinion in April 2017 to resolve ambiguities in the medical record. In an August 2017 letter, a neurosurgeon provided a favorable medical nexus opinion, on a direct basis, for the Veteran's low back disability, to include lumbar spondylosis and degenerative joint disease of the lumbar spine. As will be explained below, the Board finds this August 2017 medical opinion to be bother probative and entitled to significant weight. As to whether the Veteran's current lumbar spine disability is causally related to his in-service complaints of low back pain, the neurosurgeon opined that it was at least as likely as not. In support of this opinion, the neurosurgeon explained that the Veteran's in-service treatments and diagnoses for low back pain were not temporary conditions that completely resolved prior to his separation from military service. Rather, the neurosurgeon explained that the Veteran's symptoms, as documented by his STRs, post-service medical records, and lay evidence of record, demonstrated that he experienced chronic and continuous symptoms both during service and following his separation. Thus, the neurosurgeon explained the Veteran's reports and treatment for lower back pain were not isolated events, but were rather a progression of his symptoms which eventually lead to his current diagnoses for lumbar spondylosis and degenerative joint disease of the lumbar spine. In further support of this conclusion, the neurosurgeon explained that it is at least as likely as not that the Veteran's in-service actives caused the degenerative changes to his lumbar spine. During his military career, the Veteran served as multi-channel communications equipment operator. The neurosurgeon cited to the Veteran's reports of his duties, such as carrying heavy loads of equipment on a regular and routine basis, as support for her conclusion that his military service contributed to his current lumbar spine disability. The Board finds this August 2017 medical opinion to be entitled to significant weight, as it is thorough, explained by a clear rationale, and includes consideration of both the medical and lay evidence of record. While the Board is aware that other medical opinions of record have provided a negative nexus opinion, the Board finds that this August 2017 opinion is entitled to greater probative value due to the depth of its rationale and detailed explanation. See Simon v. Derwinski, 2 Vet. App. 621, 622 (1992)(holding the Board is permitted to favor one opinion over another provided that it gives adequate statements of its reasons and bases for doing so). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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. In conclusion, after a thorough review of the evidentiary record, the Board concludes the weight of the evidence supports a finding of service connection for the Veteran's low back disability, to include lumbar spondylosis and degenerative joint disease of the lumbar spine, on a direct basis. This finding is appropriate in light of the Veteran's STRs documenting numerous instances of symptoms and treatment for low back pain and continued treatment following his separation from military service. The Board additionally finds the August 2017 VHA medical opinion to be probative and entitled to significant weight. Based upon the foregoing, and affording all benefit of doubt to the Veteran, service connection for a low back disability, to include lumbar spondylosis and degenerative joint disease of the lumbar spine, is granted. See 38 U.S.C. §5107; 38 C.F.R. § 3.102. ORDER Service connection for a low back disability, to include lumbar spondylosis and degenerative joint disease of the lumbar spine, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs