13-09 355
13-09 355
| Board of Vet. App. | Jul 31, 2017Background
- Veteran served on active duty from July 1990 to January 1992 and worked as an import freight processor/unloading aircraft.
- Service treatment records from March–October 1991 document complaints of chronic low back pain and an August 1991 note recommending Medical Evaluation Board due to service aggravation.
- Post-service diagnoses include lumbosacral sprain, intervertebral disc syndrome (private April 2016 exam), and degenerative arthritis of the spine (VA C&P December 2016).
- April 2016 private examiner opined the Veteran’s in-service strained ligaments continued to cause pain; December 2016 VA examiner opined the back disorder was less likely than not related to service and scoliosis was not aggravated beyond normal progression.
- The Board found the medical evidence regarding nexus in equipoise and, under the benefit-of-the-doubt rule, granted service connection for a low back condition with scoliosis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to service connection for low back condition with scoliosis | Veteran: back condition began/was aggravated by in-service lifting duties and chronic in-service back pain | VA: C&P examiner concluded nexus not at least as likely as not and scoliosis not aggravated beyond normal progression | Board: Evidence is in equipoise; benefit of the doubt to Veteran; service connection granted |
Key Cases Cited
- Bryant v. Shinseki, 23 Vet. App. 488 (Vet. App. 2010) (discusses duties at hearings and VA notice/assistance obligations)
- Mayfield v. Nicholson, 20 Vet. App. 537 (Vet. App. 2006) (corrective action to cure notice deficiencies)
- Pelegrini v. Principi, 18 Vet. App. 112 (Vet. App. 2004) (timing of notification)
- Stegall v. West, 11 Vet. App. 268 (Vet. App. 1998) (remand orders require compliance)
- D'Aries v. Peake, 22 Vet. App. 97 (Vet. App. 2008) (remand requires substantial, not strict, compliance)
- Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (elements required to establish service connection)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App. 1990) (benefit-of-the-doubt rule and evidentiary burdens)