Citation Nr: 1807193 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-24 617A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for lumbar spine disability, claimed as bulging disc protrusion at L4-L5. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and a witness ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2005 to February 2009. She is the recipient of a Combat Action Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Jurisdiction was subsequently transferred to Chicago, Illinois. In August 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the proceedings is associated with the electronic claims file. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, a lumbar spine disability, claimed as a bulging disc protrusion at L4-L5, is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disability, claimed as bulging disc protrusion at L4-L5, have been met. 38 U.S.C. § 1101, 1110, 1112, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). Service connection may be presumed for certain chronic diseases, to include arthritis, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. 3.307, 3.309(a) (2017). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b) (2017). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. 38 C.F.R. § 3.303(b) (2017). Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of 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. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of service as shown by the service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (a) (West 2014). The Board notes that the Veteran's service treatment records are unavailable and as such, the Board has a heightened duty to consider the "benefit of the doubt" doctrine. See generally Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v, Derwinski, 1 Vet. App. 365, 367 (1991).. In February 2009, a VA medical center (VAMC) note indicated the Veteran was a recent discharge from Operation Iraqi Freedom. She stated she was involved in an improvised explosive device (IED) explosion in which she sustained hip and back injuries. She reported pain radiating from her back going down her leg. In May 2009, a VAMC nursing note indicated the Veteran reported pain in her left buttock area, from the left side of her waist to the top of her left thigh. In November 2009, an MRI of the lumbar spine was approved. In February 2010, a VAMC orthopedic surgery outpatient note showed that the MRI revealed the Veteran to have a bulging disc at L4-L5. A discogram was to be scheduled. In November 2010, a VA examination noted the Veteran had L4-L5 disc bulge. The Veteran reported that she had been involved in an IED explosion in May 2008. She stated that she sustained a hip and back injury at that time. The examiner stated that he was unable to determine whether the Veteran's bulging discs were related to her active service without resorting to mere speculation due to the vague nature of the Veteran's STRs and VA medical records. In August 2016, a VA examination found the Veteran to have degenerative arthritis of the spine, lumbar disc protrusion at L4-L5. The Veteran reported that she had injured her back in an IED explosion in May 2008. She reported constant back pain without pain radiation or radicular symptoms. The examiner stated that she was unable to opine on possible etiology of Veteran's back condition without resorting to mere speculation as the Veteran's available STR's were silent for the claimed condition. The examiner noted that review of VA intake visit note on February 13, 2009, was silent for back condition and that the Veteran was not found to have the condition until December 2009. In January 2017, the Veteran submitted a buddy statement from a fellow service member who was involved in the May 2008 IED explosion. This service member stated that they were involved in a May 2008 IED explosion when the Humvee in which they were riding hit an IED. He stated that the vehicle felt like it did a front wheelie and returned to the ground with a hard impact. He reported that the Veteran immediately stated that her left hips, left leg, and back were hurting. He stated that upon their return to base they were evaluated by a medical unit, where the Veteran was treated for injury to her back. In January 2017, the Veteran submitted a second buddy statement regarding her IED explosion and back injury. A second Humvee occupant indicated that he was a passenger in a Humvee with the Veteran when they were involved in an IED explosion. He reported that he recalled the Veteran stating that her left leg and hip were hurting her. In February 2017, a VAMC orthopedic surgery note indicated the Veteran had a recent MRI which showed that the Veteran had grade 3 modic changes at L4-L5, which had progressed, but not substantially. L5-S1 was now 4.5 modic. In August 2017, the Veteran and her friend testified at a hearing before the undersigned Veterans Law Judge. The Veteran stated that when the Humvee hit the IED she flew to the side and landed on the side plate of her bullet proof vest. She stated that she had pain in her back. She stated she reported pain in her back after returning to base camp. She reported that her back pain has been present since the IED explosion in-service. After review of the record, the Board finds that service connection should be granted for disc bulge at L4-L5. Initially, the Board notes that the Veteran's DD 214 shows that she is the recipient of a Combat Action Badge. As she did engage in combat, the provisions of 38 U.S.C.A. § 1154 (b) are applicable and her statements regarding experiencing trauma to her back resulting from an IED blast are accepted as fact. After service, she was seen that same month after discharge from service with complaints of back pain that she related to the IED blast in service. Further, the Veteran has consistently related her back pain to her service, specifically the May 2008 IED explosion. She also testified as such in her August 2017 hearing and that her back pain has been ongoing since service. Given the consistency of her complaints and the objective evidence of record, the Board finds the Veteran credible regarding her reported symptomatology. There is no evidence that impeaches the Veteran's credibility before the Board. Furthermore, the Board notes that the Veteran is considered competent to report the incidents she experienced during service, and there is no evidence of record to indicate that the statements are false. The Board finds the Veteran credible Though the VA examiners did not relate the Veteran's back disability to service, the examiners also did not correctly report the Veteran's February 2009 report of back pain and did not have benefit of the buddy statements submitted by the Veteran. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is warranted for a lumbar spine disability, claimed as bulging disc protrusion at L4-L5, and the claim is granted. 38 U.S.C.A. § 5107 ; 38 C.F.R. § 3.102 . ORDER Entitlement to service connection for a lumbar spine disability, claimed as bulging disc protrusion at L4-L5, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs