Citation Nr: 0705580	
Decision Date: 02/27/07    Archive Date: 03/05/07

DOCKET NO.  04-16 305A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUE

Entitlement to service connection for status post L4-L5 
discectomy with degenerative disc disease.  


REPRESENTATION

Appellant represented by:	AMVETS


ATTORNEY FOR THE BOARD

Anthony M. Flamini, Associate Counsel




INTRODUCTION

The veteran had active service from March 1974 to March 1977, 
from June 1978 to September 1978, and from March 1984 to 
August 2000.  This matter comes before the Board of Veterans' 
Appeals (Board) on appeal from a May 2003 rating decision of 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in St. Petersburg, Florida.  The case returns to the Board 
following a remand to the RO in February 2005.


FINDING OF FACT

Medical evidence of record shows that the veteran's current 
status post L4-L5 discectomy with degenerative disc disease 
is as likely as not related to back injury in service.  


CONCLUSION OF LAW

Status post L4-L5 discectomy with degenerative disc disease 
was incurred during active service.  38 U.S.C.A. §§ 1131, 
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2006).   


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted if the evidence 
demonstrates that a current disability resulted from an 
injury or disease incurred or aggravated in active military 
service.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 
3.303(a) (2006).  Service connection generally requires 
evidence of a current disability with a relationship or 
connection to an injury or disease or some other 
manifestation of the disability during service.  Boyer v. 
West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez 
v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. 
Principi, 3 Vet. App. 542, 548 (1992)).  Where the 
determinative issue involves medical causation or a medical 
diagnosis, there must be competent medical evidence to the 
effect that the claim is plausible; lay assertions of medical 
status do not constitute competent medical evidence.  
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. 
Derwinski, 2 Vet. App. 492, 494 (1992).  

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.  38 
U.S.C.A. § 5107(b).

In this case, service medical records reveal that the veteran 
was noted to suffer from a history of episodic lower back 
pain at his June 2000 retirement examination.  He separated 
from active duty in August 2000.  

After service, in July 2002, the veteran sought treatment 
from Dr. R. B. Lurate, M.D., a Board-certified orthopedic 
surgeon, for an onset of back pain that began in January 
2002.  The diagnosis was degenerative disc disease at L5-
S1and a large herniated charris@example.org.  The veteran underwent 
an L4-L5 discectomy in August 2002.  In a letter dated May 
2003, Dr. Lurate opined that, while the L4-L5 disc herniation 
would be considered an acute phenomena, the degenerative disc 
disease at L4-L5 was a chronic problem in evolution which was 
more likely than not occurring during his military service.  
To support his claim, the veteran provided letters dated in 
August 2003 from three servicemen who had served with him, 
each stating that the veteran had complained of low back pain 
in service.  

The veteran was afforded a VA spine examination in March 
2005.  The report of the March 2005 examination included a 
thorough review of the claims folder and outpatient file and 
a discussion of the relevant findings from prior records.  
The examiner was a Doctor of Osteopathy.  After review of the 
record and examination of the veteran, the examiner diagnosed 
the veteran with residuals of status post-discectomy without 
objective evidence of radiculopathy.  The examiner stated 
that she was unable to connect the veteran's back disorder as 
having manifested during service because there was no 
objective evidence of the condition prior to the veteran's 
discharge from the military.  The examiner conceded that it 
may have started in the military, but she was unable to find 
medical records to support the veteran's contentions.  She 
observed that there was no X-ray evidence of abnormalities.  

Clearly, the evidence of record shows low back symptomatology 
in service and less than two years after service.  The claims 
folder contains medical reports from two physicians: a Board-
certified orthopedic surgeon who opines that it is more 
likely than not that the veteran's degenerative disc disease 
was occurring during service and a Doctor of Osteopathy who 
was unable to find medical records to support the veteran's 
contentions of in-service occurrence.  Reviewing the record, 
the Board finds that the evidence is in relative equipoise, 
such that doubt must be resolved in the veteran's favor.  38 
U.S.C.A. § 5107(b).  Accordingly, the Board finds that the 
evidence supports service connection for status post L4-L5 
discectomy with degenerative disc disease.  The appeal is 
granted.   

The Duty to Notify and the Duty to Assist

Review of the claims folder reveals compliance with VA's duty 
to notify and to assist.  38 U.S.C.A. §§ 5103(a), 5103A; 38 
C.F.R. § 3.159.  The Board emphasizes that the disposition in 
this case is wholly favorable to the veteran, such that any 
defect in notice or assistance that may exist does not result 
in any prejudice to the veteran.  Bernard v. Brown, 4 Vet. 
App. 384, 392-94 (1993).


ORDER

Subject to the law and regulations governing the payment of 
monetary benefits, service connection for status post L4-L5 
discectomy with degenerative disc disease is granted.  


____________________________________________
C. W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs



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