Citation Nr: 20004577 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 12-21 009 DATE: January 21, 2020 ORDER Service connection for the lumbar L4-L5 herniated nucleus pulposus, status post hemilaminectomy and discectomy is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s lumbar L4-L5 herniated nucleus pulposus, status post hemilaminectomy and discectomy is related to service. CONCLUSION OF LAW The criteria for service connection for the lumbar L4-L5 herniated nucleus pulposus, status post hemilaminectomy and discectomy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was a member of the Army National Guard and served on active duty for training from July 1973 to November 1973 and had active military service from May 1984 to June 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board most recently remanded this matter in June 2018 for additional development, which has been substantially completed. Service Connection Generally, to establish service connection, a claimant must show: (1) 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, the Veteran seeks service connection for a thoracolumbar spine disability, to include as secondary to his service-connected right knee disability. The Veteran contends that he injured his back in May 1984 while unloading supplies for the mess hall. See, VA Form 21-4138, Statement in Support of Claim, received September 2009. In the alternative, he contends that his current low back disability is secondary to his service-connected right knee disability. See, VA Form 21-4138, Statement in Support of Claim, received August 2008. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA examinations show diagnosis of lumbar L4-L5 herniated nucleus pulposus, status post hemilaminectomy and discectomy; thus, the Veteran has a current disability of the thoracolumbar spine. See VA examination, March 2016. During service, the Veteran was treated in May 1984 for complaints of back pain, diagnosed as lumbar sprain; thus, there was an event or incident during service. Accordingly, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes August 2005 and April 2008 VA opinions indicating that the Veteran’s back disability is related to a post-service injury. However, the examiners did not address the in-service event and treatment, thus the opinions are not adequate for rating purposes. Adequate for rating purposes are the VA opinions dated in March 2016 and May 2019. In March 2016, a VA examiner found that the Veteran’s back disability was less likely as not related to service. The examiner noted the in-service injury but stated that the May 1984 injury was an acute and transient condition with no further complaints during service. The examiner stated that examinations completed in August 1985 and February 1990 were also silent for complaints or diagnosis of a lumbar condition. The examiner indicated that the Veteran had a civilian work-related injury in 1993 and has continued follow-up care with VA. Thus, the examiner concluded that the disability is not related to service. In May 2019, a VA examiner agreed with the March 2016 opinion, and reiterated the findings documented in March 2016. The evidence in favor of the claim includes a private opinion from Dr. P.C., which was received in January 2020. In his report, Dr. P.C. indicated review of the Veteran’s records and he included a summary of the Veteran’s treatment during and after service. He also summarized the VA examination reports and opinions. After his review of the file, Dr. P.C. indicated that the VA opinions demonstrate unawareness of the natural history of posttraumatic degenerative spine disease. Dr. P.C. explained how rotational trauma to the disc, which can occur from direct trauma or from lifting or twisting awkwardly and as occurred in the Veteran’s case in May 1984, would have started the degenerative process, or phase I. He stated that this trauma results in tears or fissures of the annular wall of the intervertebral disc and can cause acute episodes of pain, which likely resolve. He stated that over time, classically described in terms of decades, as the degenerative process continues, patients develop phase II, or unstable phase symptoms, to include herniated discs, loss of disc height, and segmental instability. He indicated that phase III, or the stabilization phase, is characterized by further disc resorption, narrowing, fibrosis, and osteophyte formation. He stated that the Veteran’s symptoms and radiographic findings fit the description and timeline, and his ability to continue to serve in the military after the injury and the time that passed between the initial and in-service insult and the manifestation of phase II and phase III symptoms are consistent with the natural history of posttraumatic degenerative disc disease. He stated that the fact that there was radiographic evidence of degenerative disc disease and bulging discs in 1995, just two years after the on-the-job injury, make it much more likely than not that the process which caused those findings had begun much earlier than the 1993 injury. He concluded that it was more likely than not that the in-service injury led to the development of severe degenerative disc disease, which eventually required operative intervention. He clarified that while the Veteran had intercurrent injuries, the medical literature is clear that without the initial injury in 1984, the Veteran would not have been at such a high risk of repeated injury and his degenerative disc disease would not have progressed to such a degree. The Board acknowledges, when considering all the evidence of record, some of it favors a nexus between the current disability and service and some of it does not. Both opinions are based on a review of the record and are supported with rationale; thus, the Board must conclude that the evidence is in equipoise. A claim will be denied only if the preponderance of the evidence is against the claim. If the evidence is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for the thoracolumbar spine disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda G. Alderman The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.