Citation Nr: 0730644 Decision Date: 09/28/07 Archive Date: 10/09/07 DOCKET NO. 05-15 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for degenerative disc disease, lumbar spine, postoperative. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. W. Harley, Associate Counsel INTRODUCTION The veteran had active service from August 1975 through November 1975. 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 Atlanta, Georgia. FINDINGS OF FACT The medical evidence of record shows that the veteran is currently diagnosed with degenerative disc disease of the lumbar spine that is as likely as not related to his September 1975 in-service back injury. CONCLUSION OF LAW The criteria for service connection for degenerative disc disease, lumbar spine, postoperative, are met. 38 U.S.C.A. §§ 1111, 1131, 1132, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking service connection for a back disability. Entitlement to service connection requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). The veteran has established that he has a current back disability. See January 2005 VA examination report showing a diagnosis of severe degenerative disc disease at L5-S1 with a fusion at this site from a posterior approach, and degenerative disk disease at L4-5. This element of service connection is not in dispute. What must be established is that his current disability resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). A veteran is presumed to be in sound condition when he is accepted into service, with the exception of disorders noted at the time of entry. 38 U.S.C.A. § 1132; 38 C.F.R. § 3.304(b). Here, there is no evidence of a disorder noted upon entry as the veteran's June 1975 entrance examination is devoid of evidence of a back disorder. Also, September 1975 service medical records specifically note that the veteran had no complaints regarding his back prior to service. Because there is no evidence that a preexisting condition was noted upon entry into service, the veteran is presumed to have been sound upon entry. See 38 U.S.C.A. §§ 1111, 1137. Shortly after entering service, while in basic training, the veteran fell onto his back while running out of his barracks to get into formation. See September 1975 service medical records; also see Board hearing transcript at page 3. The veteran was treated for an acute lumbar spine strain and released for duty. See September 1975 service medical records. The veteran continued to report back pain and was ultimately admitted to the Moncrief Army Hospital. He was in the hospital for several weeks and discharged with a diagnosis of acute lumbosacral strain, resolved. See Moncrief Army Hospital records dated September 1975 through October 1975; also see hearing transcript at page 4. A review of these service medical records makes clear that the veteran had an in-service incident involving a back injury. The remaining question is whether the current back disability is causally connected to the in-service incident apparent in the record. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). The veteran claims that his current disability is related to the in service incident. He first suggested such in a June 1976 informal claim for service connection for a back disability. This claim was not signed and, consequently, was not acted upon by VA, but is clearly in the record. See June 1976 Form 21-526. This claim was made within year of the veteran's service. According to the veteran, he was treating with a Dr. Kinlaw at that time. See hearing transcript at page 4. He recalls Dr. Kinlaw's diagnosis as ruptured disc at L4-5. Id. at page 15. The doctor's records are not a part of the claims folder as he has since retired and his records have been destroyed. Id. at page 12. The record, however, shows that the veteran believed that he had a service-related back disability as early as June 1976, when he attempted to file a service-connection claim. It is also evident that the type of disability claimed then is identical to the currently claimed disability. While this evidence alone does not establish a nexus, it does lend credibility to the veteran's claim. In a November 2003 written statement and with his July 2007 hearing testimony, the veteran makes clear his belief that his current disability is related to the documented in service back injury. His statements, however, are not competent to establish a medical nexus between his current disability and his in-service injury. Although lay evidence is acceptable to prove the occurrence of an injury or symptomatology over a period of time, lay testimony is not competent to prove a matter requiring medical expertise, such as an opinion as to diagnosis or medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Competent medical evidence showing a medical nexus is required for service connection. The Board reviewed the entire claims folder to seek evidence of a medical nexus. There are medical records relating to the veteran's back disability spanning a number of years. See private medical records dating from 1980, including Dekalb General Hospital and Dr. Rezaiamiri. While these records clearly show that the veteran has had a back disability for many years, they do not relate his injury to service. There are just two medical reports relating to the issue of medical nexus. A private physician submitted a medical opinion in April 2004. The physician stated that his analysis was based upon a review of the medical evidence pertaining to the veteran's in-service injury, and also reported the veteran's post- service history of accidents. It is clear from the report that he physician has a clear picture of the claim, as his description is consistent with the evidence described above. Following his accurate summary of the veteran's history, the physician rendered the following opinion: "Based upon the patient's previous injury, it is my opinion that [the veteran's] current back condition (degenerative disc disease of lumbar spine) is more likely than not to be related to his previous injury which he sustained on September 4, 1975." The doctor based his opinion on the evidence of degenerative disc disease and spondylolisthesis at the time of the September 1975 injury, noting that this condition would result in additional degenerative changes of the lumbar spine. The examiner went on to comment that the subsequent back injuries could have exacerbated his previous injury, but confirmed his opinion that the veteran's "current condition is a result of progression deterioration of the lumbar spine which began with his initial documented injury in September 1975." This report clearly supports the veteran's claim. In January 2005, the veteran was afforded a VA examination. The examiner also reviewed the claims folder. Following physical examination, the examiner diagnosed severe degenerative disc disease at L5-S1 and degenerative disc disease at L4-5. Based upon a physical examination and review of the claims folder, the VA examiner stated "with a reasonable degree of medical certainty that [the veteran] experienced a lumbosacral strain while in military service which resolved, and it would be less likely than not that [the veteran's] present lumbar spine condition/diagnosis would have been caused by or contributed to by military service." This report clearly weighs against the veteran's claim. Considering the evidence of record, including in particular the service medical records, the June 1976 informal claim, the April 2004 nexus opinion, and the January 2005 VA nexus opinion, it becomes clear that there is evidence in favor of the veteran's claim, evidence neutral in nature, as well as evidence clearly against his claim. Because there is evidence to support the veteran's claim, and evidence weighing against a connection between the veteran's current degenerative disc disease of the lumbar spine and his active service, at the very least, the evidence is in relative equipoise in showing that the veteran's back disability as likely as not originated in service. By extending the benefit of the doubt to the veteran, this claim must be granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. A discussion addressing whether VA's duties to notify and assist the veteran have been complied with is not warranted. To the extent necessary, VA has fulfilled its duties to notify and to assist the veteran in the development of his claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In light of the determinations reached in this case, no prejudice will result to the veteran by the Board's consideration of this appeal at this time. Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). ORDER Entitlement to service connection for degenerative disc disease, lumbar spine, postoperative, is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs