Citation Nr: 0728018 Decision Date: 09/07/07 Archive Date: 09/14/07 DOCKET NO. 04-41 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for residuals of a low back injury/sprain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from October 1987 to October 1991, including combat service in the Southwest Asia theater of operations during the Persian Gulf War, and his decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, that denied the veteran's claim of service connection for residuals of a low back injury/sprain (low back disability). FINDING OF FACT The veteran's residuals of lumbosacral spine sprain had its onset during service. CONCLUSION OF LAW Residuals of lumbosacral spine sprain were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for residuals of lumbosacral spine sprain. This represents a complete grant of the benefit sought on appeal. Thus, a discussion of VA's duties to notify and assist is unnecessary. Although the veteran served in combat, he does not assert that his low back disability was incurred in or aggravated by such service. Instead, in his statements he maintains that service connection is warranted for low back disability because he sustained low back trauma from an in-service fall from a height of 20 to 30 feet. In support, he points out that he received significant in-service treatment for the condition, including medications and physical therapy, and reports that he has had chronic low back problems since that time. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. The law also provides that service connection may be granted for any disease 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Generally, to establish service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The service medical records show that the veteran was seen on numerous occasions for various back complaints after sustaining trauma as a consequence of falling 25 to 30 feet in late 1989. Treatment entries, dated in November, 1989 reflect that he was diagnosed as having paravertebral tenderness, muscle spasm and limitation of motion. In December 1989, the veteran complained of having constant low back pain and the examiner diagnosed him as having lumbar strain as well as "lumbar muscle strain vs. herniated disc." In January 1990, he was again seen for complaints of low back pain and was diagnosed as having low back strain. In April 1990, when seen for continued complaints of low back pain, the veteran reported having pain that radiated to his lower extremities; he was diagnosed as having low back pain. The records also show the veteran was treated with medications and physical therapy. In February 2004, the veteran was afforded a VA orthopedic examination. In the report, the physician noted that the veteran suffered a fall during service in which he injured his low back and that he complained of having chronic recurrent low back pain since that time. Physical examination revealed that he had backward extension to 10 degrees, flexion to 60 degrees, lateral flexion bilaterally to 20 degrees, and rotation bilaterally to 15 degrees. The physician reported that the veteran exhibited pain on motion, especially with extension and flexion of the spine. X-ray study was negative and the examiner diagnosed the veteran as having residuals of lumbosacral spine sprain. In the March 2004 rating action on appeal, the RO denied service connection for low back disability on the basis that despite his complaints of pain, the February 2004 VA examination report states there was no X-ray evidence of "actual pathology," and that in the absence of a diagnosis, service connection could not be established for low back pain. The veteran appealed, and in April 2004, he was afforded a VA spine examination. The examiner acknowledged that the veteran had current low back symptoms and that he was seen for low back problems during service. With regard to the onset and etiology of the condition, the examiner opined although the veteran had "repetitive complaints of back pain" in service that were symptomatic by history, he stated that the symptoms were not supported by "objective findings of pathology," and that it would be conjecture on his part to state whether there was an association between "those repetitive back complaints [in service] and the veteran's present back symptoms." The August 2005 VA psychiatric examination report shows that the psychiatrist indicated that the veteran had chronic back pain. In adjudicating this claim, the Board must assess the veteran's competence and credibility in reporting that he has chronic low back problems since the documented in-service trauma to his low back. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In Barr and Washington, the United States Court of Appeals for Veterans Claims (Court) noted that a veteran was competent to testify to factual matters of which he had first-hand knowledge, and citing its earlier decision in Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), held that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness's personal knowledge; see also 38 C.F.R. § 3.159(a)(2) (2006) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). In this capacity, the Board finds the veteran to be competent and credible in reporting that he has had chronic low back problems since the in-service trauma to his low back. Layno, 38 C.F.R. § 3.159(a)(2). Further, in light of the in-service findings and the February 2004 VA examiner's diagnosis of residuals of lumbosacral spine sprain, and with the resolution of all reasonable doubt in the veteran's favor, the Board finds that service connection is warranted for residuals of lumbosacral spine sprain. ORDER Service connection for residuals of lumbosacral spine sprain is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs