Citation Nr: 1808693 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 08-05 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: John Berry, Attorney-at-Law ATTORNEY FOR THE BOARD L. D. Logan, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1998 to May 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA), in which the Veteran was denied entitlement to service connection for a low back disability, diagnosed as herniated L5-S1 disc, with slightly displaced right S1 nerve, to include osteoarthritis. The Veteran filed a notice of disagreement and perfected his appeal in February 2008. Subsequently, in a July 2009 decision, the Board denied the Veteran's service connection claim. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court), and in August 2011, the Court issued a Memorandum Decision, vacated the denial, and remanded the case to the Board for further action. The Board remanded the case in March 2012 for further development consistent with the Court's decision. Thereafter, in May 2013, the Board issued a decision denying the Veteran's claim for service connection. The Veteran appealed the denial to the Court, and in a July 2014 Memorandum Decision, the case was again vacated and remanded back to the Board. In February 2015 and August 2017decisions, the Board remanded the case for further development. The case has since returned for further appellate consideration. The Board observes that at the beginning of the appeal the Veteran was represented by the Disabled American Veterans. Thereafter, the Veteran appointed attorney, John Berry, as his representative, in an August 2007 VA Form 21-22a, effectively revoking the prior representation by the Disabled American Veterans. Accordingly, the Board recognizes John Berry as the Veteran's current representative in connection with these claims. See 38 C.F.R. § 14.631 (f)(1) (2017) (unless a claimant specifically indicates otherwise, the receipt of a new POA executed by the claimant and the organization or individual providing representation shall constitute a revocation of an existing power of attorney.) FINDINGS OF FACTS 1. The Veteran sustained an injury to his low back during service. 2. The Veteran has experienced "continuous" symptoms of low back pain since service separation. 3. The weight of the evidence supports that the Veteran's current low back disability, including arthritis, is related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a). Given the favorable outcome of this award of service connection for a low back disability, no prejudice to the Veteran could result. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Pertinent Laws and Regulations Governing Service Connection Claims Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Showing continuity of symptomatology since service under 38 C.F.R. § 3.303 (b) is an alternative means of linking a claimed disability to service, but is only available for the "chronic diseases" specifically enumerated in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the competent evidence shows that the Veteran has osteoarthritis, which is a form of arthritis. Arthritis, also referred to as degenerative joint disease, is a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuity of symptomatology" after service under 38 C.F.R. § 3.303 (b) are warranted. See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in-service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303 (b) only apply to "chronic" diseases at 3.309 (a)). For a chronic disease such as osteoarthritis, service connection may be established under 38 C.F.R. § 3.303 (b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R § 3.303 (b). While the disease need not be diagnosed during service, it must be shown, by acceptable lay or medical evidence, that there were symptoms of the disease during that time. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). 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) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C. § 5107 (2012). 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). Analysis The Veteran asserts that his low back disability is due to an in-service injury and that his symptoms have been continuous since service. Initially, the medical evidence confirms that the Veteran is currently diagnosed with L-spine degenerative disc disease with herniated nucleus pulposus (HNP) of L5-S1, facet osteoarthritis. See October 2017 VA Medical Opinion report. Thus, the first element, the existence of a current low back disability, is met. With respect to evidence of in-service incurrence of a disease or injury, the Veteran reported that during service he slipped and fell down several steps, and while bending over in the shower later, he felt extreme and excruciating low back pain and "heard a snap" in his low back. See April 2012 VA examination. Service treatment records (STRs) dated in December 1999 show the Veteran complained of lower back pain after bending over in the shower. He was diagnosed with back strain and was treated with Anaprox. In October 2001, the Veteran reported having low back pain after coming out of a modified Zebra Hatch on the USS Kitty Hawk. The examiner diagnosed the Veteran with "MLB" or mechanical low back pain, and determined it was most likely from gluteus medius and lower latissimus dorsi in origin. The Veteran was treated with Flexural and Motrin and was put on a limited duty physical profile for four days. On the March 2002 separation examination, the Veteran endorsed "No" to recurrent back pain on the Report of Medical History. However, he later reported that the "No" was in response to not having current back pain at the time of the discharge examination. The Veteran also contends that the responsibilities of his military occupational specialty (MOS) as a hull technician included lifting heavy equipment, such as welding machines and air tanks, and often required him to be in awkward positions in "cramped spaces" which caused back pain. The Board finds the Veteran, as a layperson, is competent to report back pain, as this symptom requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Accordingly, based on the credible and competent lay and medical evidence, the Board finds an incurrence of an in-service injury has been established. The remaining question for consideration is whether the currently diagnosed low back disability is related to the in-service injury. The Veteran separated from active duty service in May 2002. The Veteran reported that after service he did not immediately seek treatment for his back because his physical activity level was low due to being unemployed, and he experienced few flare-ups. Less than three years after service, an October 2005 private magnetic resonance image (MRI) evidence of mild to moderate osteoarthritis, L5-S1 disc herniation, and grade 1 spondylolisthesis. The Veteran was afforded VA compensation examinations in January 2007 and April 2012. The Veteran complained of "achy" pain and a straining sensation in his lower lumbar spine when he lifted something heavy. He further reported that his lower spine felt "kind of puffy" or inflamed. The examiner noted that during flare-ups, the Veteran reported he was unable to bend forward at the waist or sit. The Board notes that pursuant to the 2011 and 2014 Court memorandum decisions, these VA examinations were found to be inadequate. Nevertheless, the Board has no reason to doubt the credibility and competency of the Veteran's lay statements in the examination reports with regard to his symptoms of low back pain. Subsequently, according to the April 2017 and October 2017 VA addendum medical opinions, based solely on record review, the examiner opined that the Veteran's low back disability was less likely as not caused by an in-service injury because there was no evidence that the Veteran had osteoarthritis or a herniated disc while in service. However, there is no requirement that the Veteran's currently diagnosed back disability be present in service to grant service connection. The Board recognizes that in the April 2017 and October 2017 VA addendum medical opinions, the VA examiner found that the Veteran's low back disability was less likely than not related to service; however, the examiner's conclusions were based, in part, on the Veteran's negative March 2002 separation examination; although as noted, the Veteran response was based on his current condition at the time of discharge. Furthermore, the examiner found that the absence of post-service treatment, and the incorrect assumption that the Veteran was employed and had physically demanding jobs after service, indicated his back disability was not related to service. However, in contrast, the Veteran credibly reported that he was unemployed after service until 2005, at which time he sought treatment and was diagnosed with a low back disability. Finally, the examiner did not address the Veteran's credible lay statements that his responsibilities as a hull technician in service caused back pain. As such, the Board finds the medical opinions to be inadequate, and is assigned little probative weight as there is no indication that the examiners acknowledged the Veteran's credible and competent lay statements. After reviewing all evidence of record, both lay and medical, the Board finds that service connection is warranted as continuous symptoms of the Veteran's low back disability since service have been shown. In this case, there is evidence of a current low back disability, including arthritis. There is also evidence of a low back injury in-service, as shown the STRs and by the Veteran's competent and credible statements, and evidence of continuing low back symptomatology since separation and to the present time, as demonstrated by the post-service private MRI, the VA medical examinations, and the Veteran's competent and credible statements. For these reasons, the Board finds that the preponderance of the competent evidence supports the Veteran's currently diagnosed low back disability began in-service and has persisted since that time. Therefore, service connection is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a low back disability is granted. ______________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs