Citation Nr: 1805273	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  14-16 819	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUE

Entitlement to service connection for a low back disability.  


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. G. LeMoine, Associate Attorney


INTRODUCTION

The Veteran served on active duty from January 1969 to August 1972. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.

In February 2017, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.
 
 
FINDING OF FACT

The probative evidence of record is at least in relative equipoise as to whether the Veteran's degenerative joint disease of the lumber spine is etiologically related to an in-service injury, event or disease


CONCLUSION OF LAW

The criteria for service connection for degenerative joint disease of the lumbar spine have been met.  38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Entitlement to Service Connection for a Low Back Disability

The Veteran contends that he has a current low back disability that is related to an in-service event, injury, or disease.  Specifically, the Veteran contends that he developed his current back disability after a lumbar spine sprain during service.  The Veteran further contends that his symptoms have continued since his in-service injury.  See February 2017 Board hearing transcript.  

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017).  To establish service connection for a disability, the 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

A disability may be service connected if the evidence of record shows that the Veteran currently has a disability that was chronic in service or, for certain chronic diseases detailed in 38 C.F.R. § 3.309(a), including arthritis, that were experienced in service with continuity of symptomatology demonstrated thereafter.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology provisions of section 3.303(b) only apply to those chronic diseases listed in section 3.309(a)).  Continuity of symptomatology may be established if a claimant can demonstrate:  (1) that a condition existed during service; (2) post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-96 (where a condition is of the type as to which lay observation is competent to identify its existence, lay evidence is sufficient); see also Hickson v. West, 12 Vet. App. 247, 252-53 (1999) (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

An April 1993 VA treatment record contains a diagnosis of degenerative joint disease of the lumbar spine.  Accordingly, there is evidence of a current low back disability.

As to an in-service event, injury or disease, the Veteran's service treatment records reflect that the Veteran complained of back pain in June 1972.  Additionally, the Veteran's July 1972 separation Report of Medical History and separation examination reflect that the Veteran had a back sprain in 1972.  Therefore, there is evidence of an in-service event or injury, and the issue remaining for consideration is whether the current low back disability is etiologically related to the in-service event.

Concerning element 3, the Board recognizes that the evidence regarding a nexus relationship between the Veteran's current low back disability and active service is limited.  

Following separation from active service the Veteran was provided a private examination in April 1973.  The Veteran reported that he injured his low back six months prior to discharge from active service.  The Veteran stated that it took two to three weeks to recover from the initial injury and since then he has had intermittent periods of one to two day episodes of low back pain.  Additionally, the Veteran stated he continues to have some discomfort in his low back which is constant and has been increasing.  Upon examination the Veteran had decreased range-of-motion, tenderness to palpation and mild dull pain in his lumbar spine.  The private physician provided an impression of chronic low back ache and strain with recent acute exacerbation. 

A June 1989 medical treatment record reflects that the Veteran complained of low back pain that was aggravated during work.  

An October 1992 medical treatment record reflects that the Veteran had an acute onset of back pain.  The Veteran stated he has trouble walking due to the pack pain.  The physician noted that the Veteran has had a history of back problems in the past.  The physician prescribed strict bedrest for seven days until the Veteran's pain subsided.  

An April 1993 VA treatment record reflects that the Veteran was provided an x-ray of his low back.  The Veteran was diagnosed with mild degenerative changes in the lumbar spine.  

After the Veteran's April 1993 diagnosis of degenerative changes in the lumbar spine the medical record reflects that the Veteran complained of chronic low back pain in August 1996, June 2001, July 2001, October 2002, July 2003, August 2004, July 2006, January 2008 and January 2009.  The July 2001 private treatment record reflects that the Veteran complained of a history of low back pain dating back 30 years.   

The Veteran was provided a VA medical examination in February 2013.  The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination.  The VA examiner noted the Veteran's June 1972 service treatment record reflecting back pain and his 1993 diagnosis of degenerative joint disease of the lumbar spine.  The Veteran stated he has constant back pain of two to three out of ten, which occasionally increases to a seven out of ten.  The VA examiner opined that the Veteran's current low back disability is less likely than not incurred in or caused by the claimed in-service injury, event or illness.  As rationale, the VA examiner stated that the 1972 back pain resolved and that the Veteran had a normal spine exam on his separation examination.  The VA examiner further stated that the Veteran's back pain is related to a 1992/1993 injury.  When evaluating the probative value of a medical opinion, the factors include the thoroughness and degree of detail of the opinion and whether there was review of the Veteran's claims folder.  Prejean v. West, 13 Vet. App. 444 (2000); see also Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998).  In this respect, the February 2013 VA examiner did not address the April 1973 private treatment record reflecting chronic low back ache and strain beginning during the Veteran's active service and continuing after separation.  The VA examiner also did not address the June 1989 medical treatment record reflecting complaints of low back pain or the Veteran's statements that he has suffered from back pain since his in-service injury.  As a result, the Board finds that the VA examiner's opinion is entitled to little probative value.  

In consideration of all of the evidence in this case, the Board finds that service connection for a low back disability is warranted.  While the Board could remand for a new VA medical opinion, the current evidence is sufficient to decide the Veteran's claim.  38 C.F.R. § 3.159 (c) (4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose.)

The Board recognizes that the post-service medical treatment records do not reflect a diagnosis of degenerative joint disease until more than 20 years after the Veteran's separation from active service.  However, again, the Veteran sought treatment for back pain and complained of back pain shortly after service and until he was diagnosed in 1993 with degenerative joint disease.  38 C.F.R. § 3.303 (b), 3.309 (a); also see Walker, 708 F. 3d at 1331 (holding that for purposes of 3.303 (b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis, the veteran can establish service connection by demonstrating a continuity of symptomatology, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a)).  To the extent that the Veteran has a back disability other than arthritis, the provisions of 38 C.F.R. § 3.303 (d) direct that service connection may 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.  In this case, the Board finds that the evidence, including the evidence pertinent to service, is in relative balance as to whether the Veteran's current disability had its onset in active service given the documentation of the Veteran's in-service injury and the Veteran's treatment shortly after service and credible reports of back disability symptoms since his in-service injury.

As the evidence is in relative balance as to whether the Veteran's current low back disability is related to service, the benefit-of-the-doubt is resolved in favor of the Veteran.  Service connection for a low back disability, diagnosed as degenerative joint disease, is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2017). 


ORDER

Entitlement to service connection for degenerative joint disease of the lumbar spine is granted.  




____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs