Citation Nr: 1807100 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 10-36 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Veteran represented by: Christopher S. Chambers, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and his spouse testified at an August 2014 Travel Board hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. The Veteran then requested another Board hearing and testified before the undersigned Veterans Law Judge at a Travel Board hearing in September 2017. Unfortunately, due to audio malfunctions, a complete transcript of the proceeding could not be produced. In December 2017, the Veteran stated that he wished testify at another hearing. However, given that the Board is awarding a full grant of the benefit sought on appeal, there would be no prejudice to the Veteran in proceeding on the merits without an additional hearing. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). As noted in the Board's October 2014 decision, because service department records relating to the claimed disability were associated with the claims file after the issuance of the December 1971 rating decision, the Veteran's claim for a lumbar spine disability relates back to the time of his original claim that was denied by way of the December 1971 rating decision. FINDING OF FACT The Veteran's lumbar spine disability is casually related to his active duty service. CONCLUSION OF LAW Service connection for a lumbar spine disability is warranted. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. Establishing service connection generally requires (1) the existence of a present disability; (2) an 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). The Veteran contends that he has a current lumbar spine disability that was caused by his slipping on ice and injuring himself in service. He reported staying in a hospital for two weeks after the accident, and that he has had continuous pain since service. A July 1970 service treatment record showed an impression of Post Traumatic Reparative Damage of L-1 with otherwise normal LS-Spine, but there was also a notation of treatment for the back in the prior December. The Veteran was afforded a VA examination for his lumbar spine in April 2009. The examiner opined that the Veteran's back condition was not caused by or a result of his military service based on the Veteran's history and physical examination and claims file. The examiner noted the June 1970 records but stated that there was a healed injury and that there was "no telling" when it occurred. He additionally stated that there were no records in the SMRs available that showed the Veteran was ever treated for a back injury or had a back complaint. However, as noted by the Board in its October 2014 remand, treatment of the back in December 1969 was noted; the Veteran complained of back pain in July 1971; and there is also a Medical Condition Physical Profile record from November 1970 noting previous fracture of the back and stating the Veteran was medically qualified for limited duty and needed to report to a medical facility for further evaluation or treatment. The Board therefore concluded that the examination report was inadequate as the examiner did not consider these pieces of medical evidence. The Veteran was then afforded a new orthopedic examination to take the above evidence into consideration in May 2015. The examiner noted a diagnosis of degenerative arthritis of the spine as well as degenerative disc disease of the lumbar spine. After considering the Veteran's entire record, the examiner opined that the Veteran's lumbar spine disability was at least as likely as not incurred in or caused by his in-service fall. As rationale, the examiner stated "above opinion is based on reasonable doubt doctrine. There are no images prior to the Veteran's entry in the service to document the extent of the back condition that he had prior to joining the service. . . . There is also no supportive evidence based on a medical provider examination or note at the time of the claimed injury, but despite that there is documented: (1) notation of a prior fracture of the back in the medical condition physical profile record from 11/1970; (2) an x-ray result 7/7/1970 showing post traumatic reparative changes of the L1 vertebral body; (3) indication for x-ray of lumbar spine on 7/7/1970 was due to fracture of back last December; and (4) a complaint of low back pain on 7/16/1971." Another VA medical opinion was obtained in July 2016. At that time, the examiner essentially noted the Veteran's post-service back injuries and stated "this Veteran was mainly working as a painter from 1971-1990's and was able to do this job until [his] 1990's [post-service] back injuries. After the lumbar back injuries in the 1990's, the severity of those injuries precluded continuing his work in about 2000. Thus, there is no question that this Veteran had a back injury on active duty. However, after the 1969 back injury, he was able to return to full active duty afterward. Thus, the 1969 injury had healed to the point that this Veteran was considered fit for active duty again. . . . Therefore, it is less likely than not that the Veteran's current lumbar spine condition was incurred in, or related to, the lumbar spine condition that occurred during active duty military service." The Veteran submitted a private medical opinion in October 2016. The private examiner, after considering the service treatment records which note that he slipped on ice and was hospitalized for back pain, stated "I reviewed records on hand and they are consistent with the above mentioned six in-service events. This confirms with reasonable degree and medical probability that the diagnosis [of the lumbar spine] began during active duty." The examiner then went on to state that the lumbar compression fracture in 1969 could have predisposed the Veteran to his post-service injuries in 1990 and 1994 if the pathology or the disease process of 1969 did not completely heal. The examiner, however, was not able to comment on how much the lumbar compression had healed before 1990. Here, there is no question that the Veteran has a current lumbar spine disability as well as an in-service injury. Therefore, the first and second elements of service connection are met. With regard to the so-called nexus requirements, the Board notes that there are three medical opinions of record. Two of the medical examination reports provide a positive nexus between the Veteran's in-service injury and active duty. The Board finds the May 2015 and October 2016 examination reports more probative than the July 2016 report. Specifically, the June 2016 VA examiner essentially opined that the Veteran's lumbar spine disability could not be related to service due to his post-service injuries. However, this conclusion is problematic because the examiner did not consider the Veteran's reports of experiencing lumbar pain since service and also did not consider that the Veteran had previously filed a claim for his lumbar spine in 1972, which was before his later post-service lumbar spine injuries. In addition, the examiner did not consider that the lumbar spine injury, as pointed out by the October 2016 examiner, could have pre-disposed the Veteran to those post-service injuries. Thus, the Board finds that service connection for a lumbar spine disability is warranted. ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine with osteoarthritis and right hemilaminectomy and discectomy (claimed as back injury residuals) is granted. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs