Citation Nr: 0728776 Decision Date: 09/13/07 Archive Date: 09/25/07 DOCKET NO. 05-34 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Fadia Elia, Associate Counsel INTRODUCTION The veteran served on active duty from February 1987 to July 1996 with subsequent period of active duty for training from June 14, 2003 to June 28, 2003. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by a regional office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT Lumbosacral strain with degenerative disk disease and sciatica is attributable to service. CONCLUSION OF LAW Lumbosacral strain with degenerative disk disease and sciatica was incurred in service. 38 U.S.C.A. §§ 101 (2), 101 (22)(A), 101 (24)(B), 1110, 5107; 38 C.F.R. §§ 3.1(d), 3.6(c), 3.2(h)(i), 3.102, 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters As a preliminary matter, the Board is required to address the Veterans Claims Assistance Act of 2000 (VCAA) that became law in November 2000. The VCAA provides, among other things, that VA will make reasonable efforts to notify a claimant of the relevant evidence necessary to substantiate a claim for benefits under laws administered by VA. The VCAA also requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2006). Recently, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 (b) apply to all five elements of a service connection claim which include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In this case, the veteran has not been provided with the Dingess v. Nicholson notice. Id. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. In light of this favorable decision, any other VCAA violation is harmless. II. Factual Background The veteran served on active duty for training from June 14, 2003 until June 28, 2003. On June 22, 2003, he was admitted to the emergency room for an injury he sustained while lifting concrete. He complained of lower back strain ongoing for two days with pain radiating down his left leg. He was diagnosed with sciatica. The veteran has sought private medical care for the disability he is claiming. In October 2004, Dr. P.N., the veteran's orthopedic physician had diagnosed chronic lumbar symptom/sciatica. Subsequently, Dr. P.N. ordered MRIs, which were interpreted by the administering physician as indicative of disk space narrowing and dessication. More particularly, there was posterior left paramedian broad-based disk protrusion with focal mass effect on the existing left lower nerve root sleeve. In December 2004 and January 2005, the veteran sought epidural treatment for his ongoing pain. In the January 2005 procedure, he also obtained numerous diskographies on his vertebral column. The surgeon ruled in lumbar diskogenic mediated pain. It was reported that there had been ongoing buttock and lower extremity pain since approximately June 2003. In March 2005, Dr. P.N. issued an opinion based upon a review of the diskographies and MRIs, as well as the service medical record of the veteran's injury. Dr. P.N. stated that the "current condition more likely than not is related to the in service condition." He further opined: "Due to the fact that the patient has very similar symptoms and [sic] it appears that the patient almost assuredly had a disk herniation at that time." VA afforded the veteran an examination in July 2005. The file was reviewed, a physical examination was conducted, and X-rays were obtained. The examiner diagnosed sciatica/low back pain with radicular complaints into the left leg without hard neurologic deficit. The examiner opined that there was a 50-50 probability that the veteran's low back pain was "worsened" by the incident which the veteran describes of having occurred in Korea in 2003. The examiner further opined that the low back pain with left sided sciatica was possibly due to abnormalities in the lumbar spine, but that the aching pain in the veteran's back was due to osteoarthritic changes which predated 2003. It was opined that the degenerative changes involving the lower segments of the lumbar spine had been present for at least 5 years in that it takes that period of time in order to develop the disc space narrowing. III. Legal Criteria Sevice connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war. 38 U.S.C.A. § 1110. The United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, compensation as provided in this subchapter. Id. In order to establish service connection for a claimed disorder, the facts, shown by evidence, must establish: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); C.F.R. § 3.303(a). "When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin ... such doubt will be resolved in favor of the claimant." 38 C.F.R. § 3.102. Active military, naval, or air service is defined by statute to include, among other things, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty. See 38 U.S.C.A. § 101(2), 101(24); 38 C.F.R. § 3.1(d). Certain evidentiay presumptions - such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence or aggravation for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. § 1111, 1112, 1153; 38 C.F.R. § 3.304 (b), 3.306 3.307, 3.309. The advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of active duty for training or inactive duty training. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on active duty for training and had not established any service-connected disabilities from that period). IV. Analysis The record establishes that the claimant was injured while on active duty for training. He is, thus, by statute, a veteran, and entitled to compensation for any disability resulting from that injury. The veteran claims back pain with numbness and sharp pain radiating down his legs as a result of the injury he suffered when on active duty training. The service medical record, at the time the injury occurred, as well as the veteran's private medical record, and VA examination have diagnosed sciatica. In the course of treating the veteran over two years, his private physician, Dr. P.N, ordered MRIs, epidurals, as well as diskographies. He consulted with the physicians administering the tests and with an orthopedic surgeon. Dr. P.N. also reviewed the service medical record. His opinion is that the veteran's disability is due to the injury the veteran suffered in service. Dr. P.N. remarks that the veteran has very similar symptoms as the ones he suffered while in service post his injury, and that he "almost assuredly had a disk herniation at that time." Dr. P.N.'s opinion is based on extensive laboratory work as well as physical examinations, and not a reiteration of the veteran's thoughts. The VA examiner opined that there was a "50-50 probability that [the veteran's] low-back pain was worsened by the incident which he describes of having occurred in Korea in 2003." Incidentally, as noted above, the "incident" is of record. The examiner further opines that the low-back pain with left sided sciatica "is possibly due to the abnormalities in [the veteran's] lumbar spine as noted on X-rays and MRI." Finally, the examiner states that the aching pain of the veteran's back "is due to the organic osteoarthritic changes in the lumbar spine which predated 2003." The examiner's comment, while possibly medically sound, nonetheless does not affect his previous notation that such condition was, as likely as not, made worse by an injury in service. In this case, there is theoretical evidence that lumbar pathology preexisted ACDUTRA (active duty for training). However, nothing suggests that there was pain, limitation of motion, or neurologic deficit prior to service. Based upon the cumulative record, we conclude that the disability was incurred in service. Lastly, the VA medical opinion is so theoretically vague so as to place the onset of the disease process during active duty. In light of the fact that the examiner finds that the veteran's condition was as likely as not worsened by service, the veteran's condition would be compensable by law. It is not staturorily relevant in this case whether the injury caused or aggravated a pre-existing condition. Because the veteran was injured while on active duty training, he would be entitled to compensation regardless of whether his condition pre-existed and was aggravated by service, or whether its onset occurred in service. Under either circumstance, a relationship has been established between the current disability and the in-service injury. The Board finds that the veteran's lumbosacral strain with degenerative disk disease and sciatica is attributable to service. ORDER Entilement to service connection for lumbosacral strain with degenerative disk disease and sciatica is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs