Citation Nr: 1806664 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-25 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for headaches, to include as secondary to a back disorder. REPRESENTATION Veteran represented by: Mary M. Long, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Buck Denton, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1997 to May 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In an August 2011 rating decision, the RO confirmed and continued a prior denial of the Veteran's claim for entitlement to service connection for a back disorder. In a November 2012 rating decision, the RO denied entitlement to service connection for a headache disability. The Veteran presented testimony before a Veterans Law Judge via videoconference in August 2013. A copy of the transcript has been associated with the record. The Veterans Law Judge who conducted the hearing is no longer employed with the Board. The Veteran was offered an opportunity to have another hearing but in an October 2017 letter declined a further hearing. FINDINGS OF FACT 1. The Veteran's chronic low back disability is etiologically related to his period of active duty service. 2. The Veteran's headache disability is etiologically related to his low back disability. CONCLUSION OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, a low back disorder manifested by chronic low back pain was incurred in-service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. With resolution of reasonable doubt in the Veteran's favor, a headache disorder was incurred in-service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection will generally be awarded for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table decision). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2014). For the chronic diseases listed in 38 C.F.R. § 3.309(a), service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptoms after service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). When chronicity or continuity of symptoms is shown, evidence of a medical nexus or causal link to service is not required to establish service connection. Walker, 708 F.3d at 1338-39; 38 C.F.R. § 3.303(b). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be granted for aggravation of a disease or injury by a service-connected disability. Id. To establish secondary service connection based on aggravation, the evidence must show an increase in severity of a disease or injury beyond a medically established baseline which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected condition. 38 C.F.R. § 3.310(b). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (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. See Layno v. Brown, 6 Vet. App. 465 (1994). 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) the 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). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran has shown an in-service incident of back pain. The Veteran testified that he injured his back while in the military. His STRs show reports and treatment for back pain. They also note a history of back pain while in the service. Therefore, there is an in-service injury. Additionally, current treatment records show the Veteran has a diagnosis of a back strain. Therefore, the requirement of a current disability is satisfied. Finally, with regard to a nexus between the in-service event and service, the Veteran has submitted a private medical opinion. In a February 2010 opinion, the Veteran's physician, D.R., J.W., distinguished between two back injuries the Veteran suffered - one of which occurred after his military career. The physician explained that while in service, the Veteran strained the muscles and ligaments of his thoracic and upper lumbar spine, which did not result in radicular symptoms. However, the physician noted that the Veteran's fall in November 2005 at Tinker Air Force Base caused a slippage of the lower L5-S1 vertebra, and as a result, the deranged discs were causing bilateral L5 and S1 nerve root impingement. The physician determined that the nerve root impingement is not due to the Veteran's in-service injuries. His in-service injuries are the result of strains to his muscles, tendons, and ligaments of the thoracic and upper lumbar spine and not to the deranged discs in the lower back. The examiner went on to explain that even though the Veteran did suffer a back injury at Tinker Air Force Base, his second injury does not change the fact that the Veteran had the original onset of cervical, thoracic, and lumbar pain while in the Air Force. The Board finds that with resolution of the doubt in favor of the Veteran, he is competent to report his symptoms, and his testimony is credible. The Veteran has testified as to the in-service injury and a continuity of symptomatology since service. His service treatment records support his lay assertions. Finally, the medical opinion is probative and satisfies the nexus requirement. Therefore, the Veteran's claim of service connection for a back disorder is granted. In addition, the Veteran has presented credible testimony concerning the onset of a headache disability following the injury to his back. There is no evidence to suggest he is being untruthful and headaches are the type of disorder that are subject to lay diagnosis. As such, the claim for service connection for a headache disorder is also granted. ORDER Entitlement to service connection for a back disorder is granted. Entitlement to service connection for a headache disability is granted. ______________________________________________ M. Tenner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs