Citation Nr: 1808847 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-11 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Stepanick, Counsel INTRODUCTION The Veteran served on active duty from December 1969 to August 1970 and from January 1974 to August 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. Pursuant to the Veteran's request, a hearing before a Veterans Law Judge was scheduled for October 22, 2105. However, as he failed to appear for the hearing without explanation, his request was deemed withdrawn. 38 C.F.R. § 20.704(d) (2017). In March 2016, the Board sought a Veterans Health Administration (VHA) expert opinion in connection with the Veteran's claim. The requested opinion was received in January 2018. VETERAN'S CONTENTIONS The Veteran is seeking service connection for a low back disability that he asserts is related to duties he performed as a power generation equipment operator and mechanic. Specifically, he has asserted that his in-service duties included "handling heavy machinery and parts" and involved "a lot of lifting and moving of heavy objects," and that those duties have contributed to his current back problems. See April 2014 VA Form 9. FINDINGS OF FACT 1. The Veteran's spine was noted to be normal on his October 1969 enlistment examination. Subsequent service treatment records (STRs) reflect that he sought treatment for low back pain in January 1970. The report associated with an x-ray study of the lumbar spine conducted that day stated that the Veteran had been experiencing chronic low back pain during basic training and documented minimal scoliosis that was possibly positional, a transitional vertebra, and "otherwise no significant abnormality." On both an October 1975 annual medical history report and his June 1986 separation medical history report, the Veteran indicated that he had recurrent back pain. The clinician who examined him in June 1986 noted that the Veteran described pain in his lower back that was suspected to be caused by running and was not treated. The Veteran's spine was noted to be normal on the examination reports that accompanied both the October 1975 and June 1986 medical history reports. 2. During a March 2008 VA physical therapy appointment that was scheduled to address his low back pain, the Veteran reported onset of his current pain when he awoke on a certain day in October 2007. He denied any precipitating injury. A March 2008 MRI of his lumbar spine documented degenerative disc disease with posterior disc bulge and osteophyte formation, with hypertrophic facet and arthropathy at L4-L5 and, to a similar but lesser degree, at L3-L4. 3. In January 2013, a VA examiner diagnosed the Veteran with congenital transitional lumbar vertebrae and age-related degenerative disc disease of the lumbar spine and opined that those disabilities were less likely than not incurred in or caused by working as a generator mechanic during service. In support of that opinion, she cited the more than twenty-year gap between the Veteran's service and his receipt of a degenerative disc disease diagnosis in 2007. The examiner acknowledged that the Veteran had reported recurrent back pain on his June 1986 separation physical, but noted that the accompanying examination documented a normal spine. 4. In January 2018, in response to the Board's request for an opinion, a VHA expert concluded that it was at least as likely as not that the degenerative changes in the Veteran's lumbar spine were due to in-service events. In support of that opinion, he cited the absence of a spinal condition on the Veteran's enlistment examination and the various complaints of back pain documented in his STRs. He also explained that the Veteran's in-service struggles with obesity, coupled with demanding physical activities such as heavy lifting, could reasonably be associated with near constant stress to the low back. He explained that he believed there was ample evidence of injury during a period of active duty, followed by a low grade in-service back issue, and noted that multiple orthopedic medical studies supported that an injury to the ligamentous, muscular, or structural integrity of the back could lead to a chronic disease pattern and degenerative changes. The expert also addressed the January 2013 examiner's reliance on the absence of treatment between the Veteran's separation from service and 2007 by pointing out that, as the Veteran had been living with chronic back issues, he may have felt his condition was stable and not of sufficient magnitude to seek medical help. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the requirements for establishing service connection for degenerative changes of the lumbar spine have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection is warranted for a disease first 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). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2017). As is apparent from the evidence detailed in the foregoing findings of fact, the record confirms that the Veteran currently has degenerative changes in his lumbar spine. See, e.g., March 2008 MRI report. Additionally, the record documents his in-service complaints of chronic or recurrent back pain and his credible report that his military occupational specialty required physically demanding activities such as heavy lifting. Thus, the remaining question is whether a causal relationship exists between the degenerative changes in the Veteran's lumbar spine and the in-service symptoms and events he experienced. Although the record contains conflicting medical opinions on that question, the Board finds that the January 2018 VHA expert's discussion of why he determined that the current degenerative changes in the Veteran's lumbar spine are at least as likely as not related to service brings the evidence relevant to the third element of service connection at least into equipoise. Notably, the January 2013 VA examiner, who attributed the Veteran's degenerative disc disease to age, only, did not have the benefit of reviewing and considering the 1970 STR documenting the Veteran's report of chronic low back pain during basic training, as it was not submitted by the Veteran until March 2013. Regardless, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary is required to give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As such a state of balance has now been reached in this instance, service connection for degenerative changes of the lumbar spine is warranted. ORDER Service connection for degenerative changes of the lumbar spine is granted. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs