Citation Nr: 1736140	
Decision Date: 08/30/17    Archive Date: 09/06/17

DOCKET NO.  12-21 147A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to service connection for a low back disorder.


REPRESENTATION

Veteran represented by:	Colorado Division of Veterans Affairs


ATTORNEY FOR THE BOARD

R. Kettler, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1983 to September 2003.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  The Veteran has since moved to Arizona, and the Phoenix, Arizona, RO now has jurisdiction.

In March 2016, the Board remanded the case for a Board hearing.  The hearing was scheduled for a date in June 2016.  He was notified by way of a letter dated May 2016, but he failed to appear for the hearing.  The Veteran has not provided a reason for the failure to appear or requested that the hearing be rescheduled; thus, the Board deems the hearing request withdrawn.  

Additionally, the Board notes that the issue of service connection for a gastrointestinal disorder, claimed as irritable bowel syndrome, was granted by the RO in May 2017.  That award constitutes a full grant of the disability sought, and that appeal has been resolved.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date).

The record before the Board consists of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS).


FINDING OF FACT

Resolving doubt in the Veteran's favor, his current low back disorder, is related to service.





CONCLUSION OF LAW

The criteria for service connection for low back disorder have been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate any claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c),(d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  In this case, VA fulfilled its duty to assist by obtaining all identified and available evidence needed to substantiate the claim on appeal.  The Veteran's VA outpatient and in-service treatment records have been obtained, and the Veteran has been afforded numerous VA examinations in connection with his claim.  This matter was previously before the Board in July 2014 and January 2016.  The Board finds that there has been substantial compliance with its directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  For these reasons, the Board concludes that there is no additional evidence that needs to be obtained.

II. Legal Criteria

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. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).

Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition.  38 C.F.R. §§ 3.303(b), 3.307, 3.309.  Certain disabilities are presumed to have been incurred in service if manifested to a compensable degree within one year after service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R.
§§ 3.307, 3.309.  If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim.  The continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  The provisions regarding presumptive service connection listed under 38 C.F.R. § 3.309(a) apply in this matter as degenerative arthritis is listed under 38 C.F.R. § 3.309(a).

In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation.  See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996).  The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran's favor.  See VAOPGCPREC 12-99.  The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder.  See Libertine, 9 Vet. App. at 522-23.  The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids the veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service.  Clyburn v. West, 12 Vet. App. 296, 303 (1999).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrent symptoms.  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).  When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2015); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

III. Merits of the Claim

The Veteran contends that his low back disorder is the result of in-service motor vehicle accidents.  

The earliest post-service evidence of record demonstrating that the Veteran complained or was treated for a low back disability was dated many years after his active duty.  This prolonged period without complaints or treatment is evidence that there has not been a continuity of symptomatology, and it weighs against the claim.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition).

Nevertheless, during the pendency of this appeal the Veteran asserted that he experienced symptoms during and since his active duty.  Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.  Savage v. Gober, 10 Vet. App. 488, 496 (1997), citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Accordingly, the Board must consider the lay evidence submitted by the Veteran regarding his low back disability during and since his active service.

The Veteran has provided multiple statements to VA physicians indicating that his low back disorder was caused by in-service accidents, training exercises, and activities.  The Veteran reported two accidents in Iraq.  He reported one accident in which he was thrown 20 to 30 feet from a truck, and another in which he was inside of a Humvee when he was rear ended by a five-ton truck.  The Veteran testified these incidents occurred shortly after arriving in Iraq for Operation Iraqi Freedom.  The Veteran told Little Rock VA Medical Center physicians his low back has been hurting since the motor vehicle accidents.  He received physical therapy in 2009, but he did not notice improvement.  

The Veteran's assertions that he continuously experienced low back pain since his active service are considered competent evidence.  Layno, 6 Vet. App. at 469-70. Now that the Board has determined that the Veteran's assertions are competent, it must also determine whether such evidence is credible.  Id.  In weighing the credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the veteran.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  Further, the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 Vet. App. 1331 (Fed. Cir. 2006).

In this case, the evidence supports the finding that the Veteran engaged in combat.  In particular, the Veteran's service records document his involvement in combat during the Gulf War period, as evidenced by receipt of the Combat Action Badge.  See DD Form 214.  Based on this evidence, the Board finds that the Veteran engaged in combat with the enemy during service, and the combat rule is applicable.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).

The Veteran underwent x-rays of the lumbar spine in November 2012.  This testing revealed the presence of degenerative disk disease and posttraumatic changes of the lumbar spine.  An MRI of the lumbar spine performed in August 2011 revealed multilevel disease with central canal stenosis at L4/5.  See June 2012 VA examination.  A February 2013 Little Rock VA Medical Center treatment report note states that the Veteran has a diagnosis of "chronic low back" since a motor vehicle accident in Iraq in 2003.

The Veteran was afforded a VA examination in June 2012.  The examiner provided a negative nexus opinion based on a lack of documentation in service or afterwards until November 2009.  The Board finds the June 2012 VA medical opinion inadequate because the examiner did not consider all of the lay statements of record in formulating the opinion.  See Dalton, 21 Vet. App. 23.  As noted above, the Veteran has provided multiple statements indicating that his low back disorder was caused by in-service accidents.  As such, the Board affords the opinion little to no probative weight.

The Veteran was afforded another VA examination in March 2017.  Again, the examiner provided a negative nexus opinion relying largely on the lack of documentation between service and November 2009.  Yet again, the Board finds the examination inadequate because the examiner did not consider all of the lay statements of record in formulating the opinion.  See Dalton, 21 Vet. App. 23.  Therefore, the opinion is afforded little to no probative weight.  

While the VA medical opinions state that the Veteran's low back disorder is not related to service, the Veteran has explained that his low back disorder began during active service and continues to present day.  Given the consistency of his complaints and the objective evidence of pain, the Board finds the Veteran credible regarding his reported symptomatology.  There is no evidence that impeaches the Veteran's credibility before the Board.  Furthermore, the Board notes that the Veteran is considered competent to report the incidents he experienced during service, and there is no evidence of record to indicate that the statements are false.  The Board finds the Veteran credible.

Given the existence of evidence both for and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran's lumbar spine disorder arose during active service.  Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is warranted for the lumbar spine and cervical spine disorders and the claims are granted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

ORDER

Service connection for low back disorder is granted.




____________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs



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