LUMBAR SPINE DISABILITY

Summary

The veteran, who served from July 1968 to May 1970, including combat service in 1969, appeals the denial of service connection for his back and neck conditions. The veteran testified that his back and neck pain began during service after a fall in combat in 1969, resulting in shrapnel injuries and hospitalization. While the veteran's service treatment records did not explicitly document a back or neck injury, they did confirm a hospitalization for shrapnel injuries, and the veteran was awarded a Purple Heart medal. The Board found the veteran's statements regarding the in-service injury and the onset, nature, and progression of his back and neck disabilities to be competent and credible. A VA examiner in July 2013 opined that the conditions were less likely than not service-related, citing the lack of in-service documentation and intermittent treatment. However, private treatment records from March 2015 and a lay statement from the veteran's wife corroborated the veteran's account of persistent pain since service. The Board found the evidence to be in equipoise regarding the nexus between the current disabilities and service. Applying the benefit of the doubt, service connection for both the back and neck conditions was granted. The Board found the criteria for establishing service connection for lumbar spine and cervical spine disabilities were met.

Rationale

Competent evidence indicates back disability related to active duty service.; Veteran's statements regarding in-service injury and onset/progression of pain are credible.; Evidence found to be in equipoise regarding nexus to service.

Full Decision Text

Citation Nr: 19183432
Decision Date: 11/05/19	Archive Date: 11/04/19

DOCKET NO. 16-02 288
DATE: November 5, 2019

ORDER

Entitlement to service connection for back condition is granted.

Entitlement to service connection for neck condition is granted.

FINDINGS OF FACT

1. Resolving all doubt in favor of the Veteran, competent evidence indicates that the Veteran’s back disability is related to his active duty service.

2. Resolving all doubt in favor of the Veteran, competent evidence indicates that the Veteran’s neck disability is related to his active duty service.

CONCLUSIONS OF LAW

1. The criteria for establishing service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The criteria for establishing service connection for a cervical spine disability 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 FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1968 to May 1970. 

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St Petersburg, Florida.

The appellant testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in August 2019. The transcript of the proceeding is of record.

Service Connection for back and neck disabilities

Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active duty service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

With respect to evidence of current disabilities, the record shows the Veteran has been diagnosed with chronic back pain with somatic dysfunction, and degenerative disc disease in the cervical spine. (See private treatment records from Dr. G.P.). Current disabilities have therefore been demonstrated.

With respect to in-service-incurrence, the Veteran maintains that his back and neck conditions began during service, and he is competent to report the events that occurred during service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). He maintains that he fell backwards onto his back and neck while in combat in 1969; he sustained shrapnel injuries and was hospitalized for over thirty days. He has provided a consistent report of the circumstances of his in-service injury.

The Veteran’s service treatment records (STRs) do not show a neck and back injury, however they do document a 1969 thirty-one day hospitalization for shrapnel injuries. See April 1970 separation examination. The Veteran has also been awarded a Purple Heart medal. 

The Board finds that the Veteran’s service records establish that he engaged in combat with the enemy, and his statements are consistent with the circumstances of his service. See 38 U.S.C. § 1154(a), (b). Therefore, the Board finds the Veteran’s assertions regarding his in-service injury and the onset, nature, and progression of his back and neck disabilities are competent and credible evidence sufficient to establish service incurrence of such. See 38 U.S.C. § 1154 (b); Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012).

However, the combat presumption does not alleviate the requirement that the evidence show a current disability attributable to the past in-service disorder. See generally Clyburn v. West, 12 Vet. App. 296, 303 (1999). Therefore, the remaining question is whether there is a nexus, or link, between the current disability and service.

The Veteran presented for a VA examination in July 2013, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The VA examiner noted the Veteran’s report of experiencing back and neck pain that has been present
); Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012).

However, the combat presumption does not alleviate the requirement that the evidence show a current disability attributable to the past in-service disorder. See generally Clyburn v. West, 12 Vet. App. 296, 303 (1999). Therefore, the remaining question is whether there is a nexus, or link, between the current disability and service.

The Veteran presented for a VA examination in July 2013, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The VA examiner noted the Veteran’s report of experiencing back and neck pain that has been present since service; however, she opined that it is less likely than not that the Veteran’s back and neck conditions were caused by service. In support of this conclusion, the examiner explained that, there was no back or neck conditions noted at separation and that the Veteran reported intermittent treatment for these conditions. The examiner also opined that there was no evidence of any chronic ongoing conditions of the back or neck from the time of separation from service that required continuous medical treatment and the current subjective back and neck pain is most likely muscular in nature and consistent with muscle strain that would be expected in his current profession. 

In March 2015, the Veteran submitted private treatment records from Dr. A.P. The physician opined that the Veteran’s current back and neck conditions are related to his injury in Vietnam, because the Veteran has had symptoms since he was 19 years old and he would not expect to see degenerative problems in a 19-year-old.

The Veteran’s wife submitted a statement that she married the Veteran May 1970 two weeks prior to him leaving service; and ever since she has known him, he has had pain in his back and neck and his conditions has progressively become worse over the years. Both the Veteran and his wife have provided credible lay assertions that his back and neck pain began during service and has persisted since service. They are competent to report observable symptoms of pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Circ. 2007). 

Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current back and neck conditions are related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for his back and neck disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 

 

 

M. Donohue

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	E. Palatt, 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.