Citation Nr: 21042270 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-51 340 DATE: July 12, 2021 ORDER Entitlement to service connection for degenerative disc disease with low back pain is granted. FINDING OF FACT The evidence is in at least relative equipoise as to whether the Veteran's degenerative disc disease of the spine with lower back pain is a chronic disease that manifested in service as shown by a continuity of symptomatology. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative disc disease with low back pain have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the United States Army from February 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) from a December 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran provided testimony before the undersigned in September 2020. A copy of the transcript is associated with the claims file. As a procedural matter, the Board notes that a March 1998 Board decision denied service connection for a low back disability on the grounds that new and material evidence to reopen the claim had not been received. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In October 1998, counsel for the VA Secretary filed a motion to vacate the March 1998 Board decision. By a December 1998 Order, the Court granted the motion, vacating the March 1998 Board decision and remanding the matter to the Board. In August 1999, the Board remanded this case to the RO for further development of the evidence and for due process development. In August 2002, the RO issued a supplemental statement of the case (SSOC), reflecting the continued denial of service connection for the back disability. In January 2003, the Board again remanded this case to the RO for further development of the evidence and for due process development. In March 2003, the Veteran testified at a Board videoconference hearing before a Veterans Law Judge; a transcript of the hearing is of record. In July 2003, the Board found that new and material evidence to reopen the claim for service connection for a low back disability had been received, and remanded the claim for service connection on the merits to the RO for further development of the evidence and for due process development. After accomplishing the requested action, the RO continued the denial of the claim (as reflected in the March 2005 SSOC) and returned the matter to the Board for further appellate consideration. In November 2005, the Board denied service connection for a low back disability because the medical evidence of record did not establish a nexus between the Veteran's current low back disability and his in-service coccygeal injury. In January 2021, the Board again reopened the claim for service connection for spinal condition (injury to coccyx) and remanded the claim for further development of the evidence. The matter returns for appellate consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may also be established with certain chronic diseases, including arthritis, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Entitlement to service connection for spinal condition (injury to coccyx) (now claimed as lower back pain L4-L5) is granted. The Veteran contends that his spinal condition is a result of a 1967 motor vehicle injury that occurred during active duty service. The evidence in June 1993 shows that the Veteran has a current back condition diagnosed as degenerative disc disease with low back pain. See January 1995 Medical Treatment Record. Service treatment records (STRs) in October 1967 reflect an injury to the coccyx as a result of direct impact upon a wooden crate and an assessment for tenderness at the sacral coccygeal area. A November 1967 Report of Medical History reflects the Veteran's complaints for slight occasional back pain. A December 1967 STR reflects the Veteran's complaints for occasional back aches related to injury. Treatment records from Cape Cod Hospital (Goddard Medical Association) in August 1972 reflect the Veteran's complaints for a twisted back and low back strain after moving from one side of the car to another; an x-ray demonstrates mild scoliosis of the thoracic spine to the right. An August 1986 record continues to reflect complaints for lumbar spine pain. A March 1988 record reflects physical therapy treatments for the Veteran's herniated disc L4-L5 lifting injury. Medical treatment records from Brockton VAMC in October and September 1977 reflect a history of low back pain and a diagnosis for cervical osteoarthritis. A June 1989 emergency room report reflects pain on the right side of the back and a history of herniated discs and sacral injury; a recommendation was made for an orthopedic and neurological follow up evaluation for chronic back and musculoskeletal pain. A July 1989 treatment record notes the Veteran's 1967 low back injury in Okinawa, Japan, a 1983 re-injury to the back resulting in herniated discs while working in a maintenance building, and current complaints for low back pain. A July 1989 x-ray demonstrates scoliotic curve of the thoracolumbar spine. A June 1993 radiological report demonstrates degenerative disc disease of the lumbar spine at L5-S1. In a May 1993 statement, the Veteran reported that he was injured on a two-and-a- half ton truck in October 1967 while transporting supplies onsite from Okinawa to the United States where his military truck hit a pothole injuring his tailbone upon a wooden crate. He also asserted that he was treated in December 1967 for occasional back aches related to the above injury and placed on light duty for four weeks. Furthermore, he reported that he had not experienced back pain upon discharge but noted it in his history in the event of future flare-ups; he stated his back pains persisted in April 1969 at which time he first filed for service connection. A June 1993 VA examination was administered. The examination demonstrated ruptured disk of lumbar spine at L4-L5. Upon medical history, the examiner noted the Veteran's 1967 in-service back injury and 1969 treatment for pain in the posterior right shoulder with physiotherapy at the Brockton VAMC. The Veteran reported constant low back pain with acute exacerbations in the left leg and right shoulder. In an August 1993 examination record, the Veteran reported injury following a 1967 motor vehicle collision and treatments for arthritic spine at the Brockton VAMC in 1969, as well as, subsequent treatments for herniated discs L4-L5. A January 1995 private letter from Dr. P.M.M. indicated the Veteran suffered from chronic back pain related to moderate to severe arthritic changes to his lumbar spine seen on a December 1993 MRI. Dr. P.M.M. noted the Veteran's October 1967 back injury in service and his reports for low back pain nine months following discharge while working in a department store. Dr. P.M.M. concluded that the Veteran's original injury to his lumbar spine occurred as a result of his accident in service, and the level of discomfort lessened upon discharge but was subsequently aggravated following service through normal activity and hard work. A January 2002 letter from Dr. J.A.T. reported chiropractic treatments for the Veteran's lower back and persistent complaints for low back pains for two years following his October 1967 injury in service. Dr. J.A.T also noted x-ray findings for degeneration of the L5/S1 and L4/L5 intervertebral disc spaces and concluded that there is a causal relationship between symptoms presented by the Veteran and the October 1967 in-service injury, and that this injury predisposed him to a work-related injury in 1985 resulting in lumbar disc herniation. Social Security Administration records reflect treatments for the Veteran's low back pain and an administrative finding that the Veteran is incapable of performing sustained sedentary work activity or unable to carry or lift heavy objects due to his lumbosacral disc injury/pain. In a March 2003 Board hearing, the Veteran reported continuous treatments for his low back since his October 1967 in-service injury and worsened symptoms to include deadness in his left leg and inability to sleep and the use of medications and physical therapy to control his symptoms. An April 2004 VA examination demonstrated degenerative changes in the lumbar spine. A history was noted for a 1967 injury to the coccyx in Okinawa which was treated with physiotherapy and medication, recurrent pains in the lower back following service, treatments at the Brockton VAMC and a diagnosis of degenerative joint disease, a 1983 work-related industrial accident resulting in ruptured intervertebral disk at L4-L5, and decreased range of motion in the lower back consistent with the Veteran's history of ruptured discs and degenerative joint disease. A May 2004 VA addendum opinion was obtained. The examiner considered the Veteran's statements regarding his history of back pains, to include the 1967 injury to the coccyx and discomfort in the lower back, and indicated that the Veteran received compensation for the1983 industrial injury to his back and was accepted as the primary cause of his ruptured disc. The examiner concluded the Veteran's lumbar intervertebral disk rupture was not associated or caused by the service connected problems to his coccyx but rather the 1983 industrial accident at the Goddard Hospital while performing heavy lifting, and that the two incidents are unrelated. A May 2004 private letter from Dr. J.T.A. noted MRI findings for degenerative disc disease and concluded that the Veteran's ongoing symptoms are permanent and any treatment for his condition should be considered palliative in nature and short-term symptomatic relief. A March 2013 letter from Dr. K.S. indicated ongoing treatments for chronic low back pain management for the past 8 years and limitations in repetitive lifting and bending. See October 2020 Medical Treatment Record. A November 2014 MRI demonstrates a finding for L3-L4 and L4-L5 discs herniation and scoliosis to the left. An April 2016 MRI reflects complaints for worsening back pain and multilevel disc degeneration and spondylosis of the cervical spine. In an August 2016 statement, the Veteran asserted continuous back problems since service and the inability to work for some time. A November 2016 VA examination report demonstrates a diagnosis for back pain and the Veteran's reports for chronic back pains since his 1967 motor vehicle injury and subsequent traumatic back injuries stemming from a 2014 fall and 2015 rear end motor vehicle collision. The examiner provided a negative nexus opinion. The examiner noted that a coccyx condition was not noted upon separation and that the Veteran subsequently suffered traumatic back injuries resulting from physically strenuous jobs and a 2015 motor vehicle accident. Furthermore, the examiner noted a current diagnosis for coccyx condition has not been found and that the Veteran's back injuries following service have a temporal and causal relationship to his back conditions. The examiner then concluded the Veteran's back conditions are caused by degenerative and traumatic conditions associated with ageing and injuries sustained following service. Lay statements submitted by the Veteran's wife and stepbrother detail the Veteran's persistent back and spinal cord pains originating from the 1967 in-service injury and subsequent aggravated injuries, as well as, physical therapy treatments for managing pain. See August 2017 Buddy Statements. An August 2017 statement from Dr. K.S. reports ongoing treatment for chronic back pain since 2003. VA treatment records continue to reflect complaints and treatment for chronic low back pain. See September 2020 CAPRI. During his September 2020 Board hearing, the Veteran reiterated his previous assertions regarding his 1967 in-service injury to his coccyx and subsequent treatments for his back condition to the present time. An undated letter from Dr. Q. notes treatments for the Veteran under his care since 2018 and a history of chronic back pain. Upon review of the Veteran's medical record, Dr. Q. reports the Veteran's back pains predated several years prior to treatment and that his chronic symptoms may be associated with the 1967 in-service injury. See October 2020 Medical Treatment Record. The Board finds the medical evidence of record supports the contention that the Veteran's back condition is a chronic disease that manifested during service and that he has continuously sought treatment for his back condition since he was discharged. Service treatment records confirm the Veteran was treated for back pains associated with his October 1967 injury. Furthermore, the November 1968 Report of Medical History reflect the Veteran's reports of slight occasional back pains. Lumbar spine x-rays evidence degenerative disc disease and scoliosis. Treatment records at Brockton VAMC and Goddard Memorial Hospital show physical therapy treatments for low back pain following service and subsequent traumatic back injuries. Private medical opinions from the Veteran's long-term physicians, Dr. J.A.T , Dr. P.M.M, and Dr. Q, conclude the Veteran's chronic back pains are attributable to his 1967 in-service injury to his coccyx and were aggravated by subsequent traumatic injuries resulting in lumbar disc herniation. The Board has considered the May 2004 and November 2016 VA examiners' negative nexus opinions. The March 2004 examiner attributed the Veteran's ruptured disc to his 1983 post-service industrial accident and found that his back condition was associated with that injury instead. The November 2016 VA examiner relied on the lack of diagnosis for a coccyx condition upon separation but failed to consider the Veteran's noted back pains upon his November 1968 Report of Medical History during separation and continued reports and treatments for back pain since his 1967 injury. Therefore, the Board assigns the private medical opinions more probative value as their assessment was based on a review of the Veteran's medical records, lay statements, and personal assessment based on years of medical therapeutic treatments of the Veteran. The Board has also considered the Veteran's assertions that he was treated at the Brockton VAMC from February 1968 to December 1977, more significantly in 1969 within one year of active service. Correspondence in the claims file reflected attempts to obtain all medical records from the Brockton VAMC, which was only partially successful. The April 2004 VA examiner noted the Veteran's treatments at the Brockton Veterans Outpatient Clinic from 1967 to 1969 but that no specific diagnosis was made. The Veteran also asserted at his September 2020 Board hearing that he was told he had arthritis in his spinal cord following a 1969 visit at the Brockton Clinic. To this extent, if the Veteran was diagnosed with arthritic spine in 1969, he would be able to establish presumptive service connection as arthritis is a chronic disease and arguably manifested within one year of separation. (Continued on the next page) In resolving any reasonable doubt in favor of the Veteran, the Board finds that lay statements about ongoing back symptoms since his 1967 in-service back injury and medical treatment records evidencing treatment for back pains since separation, support a finding for continuity of symptomatology since he was discharged in February 1968. Accordingly, the Board finds that entitlement to service connection for a spinal condition, diagnosed as degenerative disc disease with low back pain, is warranted. 38 U.S.C. § 5107(b). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, Associate Counsel 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.