Citation Nr: 18132232
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 13-11 070
DATE:	September 6, 2018
ORDER
Service connection for chronic lumbar strain with degenerative disc disease (DDD) is granted.
FINDING OF FACT
It is reasonably shown that the Veteran’s low back disability was incurred in service. 
CONCLUSION OF LAW
Service connection for chronic lumbar strain with DDD is warranted.  38 U.S.C.  §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 
REASONS AND BASES FOR FINDING AND CONCLUSION
The appellant is a Veteran who served on active duty from August 1976 to June 1977.  This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision.  In March 2015, the case was remanded for additional development.  
In May 2016, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA).  The Board received the VHA opinion in July 2017, and a copy was mailed to his attorney in November 2017.  In February and May 2018 (pursuant to his attorney’s requests), the Veteran was granted consecutive 90-day extensions.  Those periods have lapsed; additional evidence, including a private opinion in support of the claim, was received.    
Legal Criteria
Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38. C.F.R. § 3.303(d).
To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury in service.  See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 
Lay evidence may be competent evidence to establish incurrence.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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.  However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  
Factual Background
On April 1976 service pre-induction examination, the Veteran’s spine was normal; a low back disability was not noted.  Service treatment records (STRs) show numerous complaints of back pain (and some reports of back pain prior to service). December 2 and 10, 1976, STRs note complaints of upper back pain.  A January 19, 1977, STR notes complaints of chronic upper and lower back pain and a report of a pulled back muscle episode in high school, sustained lifting weights, which resolved quickly; clinical examination at the time (of the note) found full range of motion, and neurological evaluation and X-rays were normal.  A February 7, 1977, STR notes complaints of back pain for 3 months.  A February 14, 1977, STR notes complaints of low back pain and the Veteran’s report of being in a car accident prior to service, which raised a “history of trauma question concerning back.”  A February 23, 1977, STR notes that “physical therapy doesn’t seem to be helping.” A March 25, 1977, STR notes reoccurring lower back pain, and a March 30, 1977, STR notes an assessment of back sprain.  An April 6, 1977, STR notes an assessment of muscular strain and notes the Veteran’s report that his back pain began with a motorcycle pushing injury several years prior.  The Veteran was discharged from service with a diagnosis of chronic low back muscle strain (pursuant to a May 11, 1977, Medical Board recommendation ).  
A June 2010 private treatment record notes complaints of sharp pain in the middle of the low back exacerbated when lifting old carpet out of a house.  The physician, Dr. Sather, noted a history of chronic back pain.  The assessment was sacroiliac region sprain and strain, and chronic pain syndrome.  
An October 2010 private clinical record notes complaints of worsening back pain over the past year, especially the prior 2-3 weeks.  X-rays showed mild to moderate degenerative disc disease (DDD) and moderate L5-S1 degenerative facet disease.  
On April 2012 VA spine examination, mild DDD of the lumbar spine was diagnosed.  The Veteran reported that his back pain began in service and persisted after discharge.  Following review of the record and examination of the Veteran, the examiner opined that the Veteran’s degenerative arthritis of the lumbar spine pre-existed service, but was not caused or aggravated by his military service.  He explained that the STRs showed “several limited episodes” of acute joint strains and sprains, which are “almost always a self-limited injury lasting several days to several months”, but not “severe injury to a joint, such as a fracture…or injury causing ligamentous instability.”  The Board notes that the examiner’s finding of a pre-existing low back disability appears based on the Veteran’s self-reported history of back pain prior to service (and not objective clinical evidence).  [As noted in its March 2015 remand, the Board found this opinion inadequate for rating purposes.]  
At an October 2014 Board hearing, the Veteran testified that prior to service he experienced “some back cramping” as a swimmer, but denied “any noticeable injury” from a pre-service car accident.  He testified that he first injured his back in December 1976 (approximately 4 months into service).  He testified that he experienced back pain “a couple times a month” and that he was treated with muscle relaxants.  Following discharge, he testified that he has dealt with back pain all of his life and that it “comes and goes and – well it don’t go anymore.”  
A November 2014 opinion by Erik Sather, M.D., states, “Given that his back pain was severe and chronic enough to cause discharge from his Navy service, that it was not responding to appropriate conservative management, and that previous episodes of back pain resolved spontaneously and quickly, I believe that it is more likely than not that his chronic musculoskeletal back pain IS related to his Naval service.”  Dr. Sather explained that the Veteran’s pain “is likely still from muscular strain” rather than the degenerative disk disease shown on October 2010 X-rays.  
A July 2015 addendum medical opinion (by the April 2012 VA examiner) again failed to reflect consideration of the applicable legal presumptions.  Specifically, what the provider pointed to as clear and unmistakable evidence of pre-existing disability (the Veteran’s reports of pre-service injury) is, in fact, merely evidence of (self-reported by the Veteran) pre-service injuries (a fact not in dispute).  The provider did not cite to any clinical data that support that the Veteran undebatably had a back disability (rather than history of pre-service injury) when he entered service.  
A November 2015 opinion by Frank Graf, M.D., indicates that “it is more likely than not that [the Veteran’s] condition of thoracolumbar chronic pain both began and was aggravated and accelerated during and by his military service,” and that his “current status represents a continuation and deterioration of his thoracolumbar condition aggravated in service.”  
In a June 9, 2017 VHA opinion the consulting provider opined that “It is more likely than not that the patient’s back symptoms described in the primary care physician’s notes, starting in 2010, were mainly related to degenerative disc disease, and not caused/exacerbated by the patient’s military service.”  The consulting provider opined that the back pain in service was musculo-skeletal in origin, due to strain, and that this “is usually a self-limiting condition that tend to improve with symptomatic treatment and reasonable precautions (physical therapy, good body mechanics), especially when it occurs at a young age.”  [The examiner did not specifically opine whether there is clear and unmistakable evidence that the Veteran had a pre-existing back disability.]  
In an April 2018 addendum opinion Dr. Graf noted that the Veteran had “repeated” documented instances of low back pain in service that “are not consistent with a self-limiting condition with resolution of symptoms.”  He concluded that “A review of both in-service symptoms and subsequent symptoms after military discharge being found unfit for military service due to back pain are not explained by a self-limiting condition spontaneously resolving with good body mechanics and physical therapies and reasonable precautions.”  
Analysis
It is not in dispute that the Veteran has a low back disability.  It is also not in dispute that he was treated for back pain/strains several times in service and ultimately was discharged from service with a diagnosis of chronic low back muscle strain (pursuant to a Medical Board recommendation).  What remains to be determined is whether there is a nexus between his current disability and his active service.  
Initially, the Board acknowledges that there is some evidence that the Veteran had back pain and “cramping” of his back muscles prior to service, which raised the issue of whether he had a preexisting back disability prior to service.  However, the record shows that his spine was normal on clinical evaluation on entry into service.  Accordingly, he is entitled to a presumption of soundness on entry in service with respect to low back disability.  The record does not contain clear and unmistakable evidence which rebuts that presumption.  
It is the Board’s conclusion that the competent evidence of record is at least in equipoise that the Veteran’s current low back disability was incurred in service.  His spine was normal on service entrance clinical examination, and he was discharged from service due to physical disability (chronic low back muscle strain) pursuant to a May 1977 Medical Board finding.  He has reported that his back disability was incurred in service and persisted (on and off) since.  The Board finds the April 2012 (with June 2015 addendum) medical opinion inadequate because the examiner failed to consider the applicable legal presumptions (of soundness on entrance, and if rebutted, aggravation).  The remainder of the probative medical evidence regarding the etiology of his low back disability is at least in equipoise.  


Accordingly, and resolving any remaining reasonable doubt in the Veteran’s favor, as required, the Board finds that the overall evidence reasonably shows that the Veteran’s low back disability was incurred during his active duty service, and that service connection for such disability is warranted.  

 
GEORGE R. SENYK
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Dupont, Associate Counsel 

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