Citation Nr: 1324327 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 11 28 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether there is new and material evidence to reopen a previously denied claim of entitlement to service connection for residuals of a back injury. 2. Entitlement to service connection for residuals of a back injury. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from September 1940 to July 1945. He appealed to the Board of Veterans' Appeals (BVA/Board) from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, declined to reopen his previously denied claim of entitlement to service connection for residuals of a back injury. The RO previously had considered and denied this claim in a January 1986 rating decision, which since, in the absence of an appeal, had became final and binding based on the evidence then of record. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2012). In the November 2009 rating decision and October 2011 statement of the case (SOC) and May 2012 supplemental SOC (SSOC), the RO concluded there was not the required new and material evidence since that earlier decision that would permit reopening this claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Indeed, a previously decided claim that since has become a final and binding determination may not be reopened in the absence of new and material evidence. The United States Court of Appeals for Veterans Claims (Court/CAVC) has held that, regardless of what the RO determined concerning this, so, too must the Board make this threshold preliminary determination of whether there is new and material evidence, before proceeding further, because this initial determination affects the Board's jurisdiction to readjudicate the claim on its underlying merits, meaning on a de novo basis. Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). If there is not this required evidence to reopen the claim, whatever the RO may have determined in this regard is irrelevant because further consideration of the claim by the Board is neither required nor permitted. The Board also sees that the November 2009 rating decision that is the subject of this appeal also decided several other claims, which the Veteran also initially appealed. But he since has withdrawn his appeal of those other claims, electing instead only to continue the appeal as specifically concerning the claim for his back injury. See 38 C.F.R. § 20.204. In March 2013, to assist in deciding this claim, the Board requested a medical expert opinion from the Veterans Health Administration (VHA). The designated physician, who is a Staff Orthopedist of Surgical Service in the Central Texas Veterans Health Care System, provided his expert opinion in May 2013. The Board then, in June 2013, provided the Veteran a copy of the opinion and allowed him 60 days to respond to it by submitting any additional evidence or argument. 38 C.F.R. § 20.903. The opinion is entirely favorable to the claim, and this apparently is the reason the Veteran responded in July 2013 that he had no further argument or evidence to submit. He therefore asked the Board to immediately proceed with the adjudication of his appeal, also emphasizing to please "rush" a decision since he is 97 years old. Because of his age, however, the Board already had advanced his appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The RO most recently denied the claim for service connection for residuals of a back injury in a January 1986 rating decision and appropriately notified the Veteran of that decision and of his procedural and appellate rights, but he did not appeal that decision. 2. Some of the evidence since received, however, is not cumulative or redundant of evidence already of record and considered in that decision and prior decisions and raises a reasonable possibility of substantiating this claim. 3. Indeed, this additional evidence, especially the VHA medical expert opinion, indicates he has current back disability as a residual of an injury during his service. CONCLUSIONS OF LAW 1. The January 1986 rating decision that most recently denied the Veteran's claim of entitlement to service connection for residuals of a back injury is final and binding based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2012). 2. But there is new and material evidence since that decision to reopen this claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. There now is the required evidence establishing the Veteran has chronic disability affecting his back on account of an injury incurred during his service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Here, though, the Board is fully granting the Veteran's claim. The Board therefore need not discuss whether there has been compliance with the duty-to-notify-and-assist obligations of the VCAA because even were the Board to assume, for the sake of argument, there has not been, this still would be inconsequential and therefore at most nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102. See also Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009) (clarifying that VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on an individual case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim). There simply is no such possibility in this instance since the Veteran is receiving the requested benefit, regardless. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in Veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.306 (2012). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to service connection generally requires having: (1) competent and credible evidence confirming the Veteran has the alleged disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of an etiological link or correlation between the disease or injury in service and the disability now claimed - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases like arthritis are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) also recently held in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), that the notion of showing continuity of symptomatology since service under 38 C.F.R. § 3.303(b) to alternatively establish the required nexus or correlation between the disability now claimed and a disease or an injury or an event during service only applies to conditions like arthritis that are specifically denoted as "chronic" in 38 C.F.R. § 3.309(a). Congenital or developmental defects, refractive error of the eye, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation for VA compensation purposes. 38 C.F.R. § 3.303(c), 4.9. Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." See VAOPGCPREC 82-90 (July 18, 1990). Congenital or developmental "defects" therefore automatically rebut the presumption of soundness when entering service and, therefore, necessarily are considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9; Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that the Secretary's exclusion of personality disorders from "diseases" or "injuries" as a congenital or developmental defect, such that the presumption of soundness does not apply, to be a valid exercise of the authority granted to the Secretary). As such, "[s]ervice connection [for these type] disorders, whether on a direct basis or by aggravation, is...prohibited...." 61 Fed. Reg. 52,695. But VA's General Counsel indicated service connection may be granted for diseases of congenital, developmental, or familial origin if the evidence as a whole shows that manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. Support for this position can be found in VA's regulations, themselves, since sickle cell anemia, although a familial disease, was included for rating purposes in the Schedule for Rating Disabilities (Rating Schedule). VA's General Counsel also clarified that a congenital or developmental defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Thus, to allow for proper legal analysis of a Veteran's claim as it pertains to the claimed disability, medical clarification may be necessary as to whether the Veteran's condition is a congenital or developmental "disease" or "defect." See id; Quirin, 22 Vet. App. at 395. If the claimed disorder is a "disease", an opinion may be required as to whether it was as likely as not aggravated by the Veteran's period of active service beyond its natural progression. If the claimed disorder instead is a "defect", an opinion may be required as to whether it was as likely as not subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. Competency of evidence differs from its weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value that may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Mere review of the claims file, though often important, is not determinative of an opinion's probative value, however, since a reliable history of the disability may be obtained in other ways, such as by the examiner having personally treated the Veteran over a number of years. Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually had examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that it was based on history given by the Veteran). As the Court reaffirmed in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility. But see, too, Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). New and Material Evidence to Reopen the Claim A decision of the RO becomes final and binding and not subject to revision on the same factual basis unless a Notice of Disagreement (NOD) is filed within one year of the notice of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.201, 20.302, 20.1103. If a claim has been previously denied and that decision became final and binding, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. §§ 5108, 7105(c); see also Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium); but see also Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). The Board also does not have to blindly accept, as true, assertions that are beyond the competence of the person making them. The Court rather recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). In Shade, the Court stated that, when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim. Rather, if there is newly submitted evidence of current disability that in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened. This then triggers VA's duty to assist in providing the claimant with a VA examination. The Veteran's claim of entitlement to service connection for residuals of a back injury was last considered and denied by the RO in a January 1986 rating decision. He was properly notified of that decision by way of a letter dated in February 1986, but he did not appeal. Hence, that decision is final and binding on him based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012). This claim was denied in previous RO and Board decisions. Prior to January 1986, the Board had denied this claim in a December 1982 decision. Board decisions also are final and binding if not appealed or unless there is some other exception to finality such as the Chairman orders reconsideration of the decision or it contained clear and unmistakable error (CUE). 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2012). Board decisions, on appeal, also subsume RO decisions. 38 C.F.R. § 20.1104. The Court (CAVC) now allowing for a further appellate level of review, that is, appeal of Board decisions, did not exist when the Board decided this claim in December 1982 since the Court only instead started reviewing Board decisions with passage of the Veterans Judicial Review Act (VJRA) in 1988. The January 1986 rating decision, which, again, is the most recent final and binding denial of this claim, continued to deny this claim because there was no evidence etiologically linking the Veteran's low back disability to his military service. And only having proof of the claimed disability is insufficient to sustain the claim since there also has to be attribution of the disability to service. Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The evidence of record at the time of that January 1986 rating decision included the Veteran's service treatment records (STRs) reflecting a normal musculoskeletal system on entry into service and mild dorsal kyphosis by the time of separation. The record also included personal lay statements from him indicating he had sustained a back injury during his service while building a bridge in Italy when he was struck by a bridge segment. He reported receiving medical treatment after that accident and being placed on light duty restriction. The record also contained VA treatment records reflecting diagnoses of spinal degenerative joint disease, degenerative disc disease, and rule out herniated disc. As well, the record contained private medical records indicating treatment for persistent back pain. That January 1986 decision marks the starting point for determining whether there is the required new and material evidence to reopen this claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996) (indicating VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final and binding disallowance of the claim on any basis, so irrespective of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim). The additional evidence received since January 1986 includes duplicate copies of lay statements received prior to the January 1986 rating decision. The evidence also includes the VA January 2013 hearing testimony wherein the Veteran recounted the events in Italy during World War II that he says lead to his back injury. The additional evidence also however includes the recently obtained May 2013 VHA medical expert opinion. This commenting VA physician concluded, after reviewing the file, that the dorsal kyphosis noted during the Veteran's military separation examination was not a congenital disease or defect so did not pre-exist his service, especially owing to the fact that it was not earlier noted during his military enlistment examination. This commenting VA physician determined, instead, this condition was as likely as not incurred in service. In so concluding, he relied on the Veteran's lay statements and those of others, including who had served with him, attesting that he had sustained the alleged back injury while building the bridge in Italy - even if not documented in his STRs. This commenting VA physician explained that, if the Veteran had had developmental dorsal kyphosis, it most likely would have incepted during an adolescent growth spurt, well before his enlistment into the military at the age of 24. Furthermore, if dorsal kyphosis had been present at enlistment, it likely would have been noticed and noted in the enlistment examination report. Thus, according to this VHA medical expert, the Veteran's dorsal kyphosis was neither developmental nor congenital. Rather, it was more likely a result of the alleged injury in service. This additional evidence, especially in combination with the evidence previously of record, is new and material to the claim. Specifically, the claims file now contains a medical nexus opinion clarifying the Veteran's dorsal kyphosis was not a developmental or congenital disease or defect. Rather, it was and is due to an injury in service, so incurred in service. This evidence relates to unestablished facts necessary to substantiate this claim (in that it is a competent and presumed credible medical opinion regarding a nexus between current disability and service) and raises a reasonable possibility of substantiating this claim. Thus, this claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Service Connection for Residuals of the Low Back Injury The Veteran has dorsal kyphosis, degenerative joint disease (DJD), degenerative disc disease (DDD), as well as a possible herniated disc. The Board finds credible his allegations regarding his purported back injury in service, despite no mention of any consequent disability in his STRs. This is partly because he was serving in Italy during World War II; it therefore is plausible that his STRs are incomplete. In any event, his recitation of events has been consistent over many decades, and he has provided supporting lay statements from several fellow service members that are congruent with his version of the injury. They are all competent to describe what occurred because this is their firsthand knowledge of a factual matter. See Washington v. Nicholson, 19 Vet. App. 363 (2005). And since their lay testimony concerning this is both competent and credible, it is ultimately probative. But of equal or even greater significance is the fact that the May 2013 VHA physician who authored the medical expert opinion regarding the etiology of the Veteran's back disability stated rather unequivocally that the lack of indication or observation of dorsal kyphosis at time of enlistment coupled with the subsequent notation of this condition by the time of separation tended to indicate there must have been an injury in the interim, during the Veteran's service, and of the type alleged to have caused this type of spinal change. In toto, therefore, the Veteran's allegations regarding a back injury in service appear to be highly credible, competent, and supported by this later VHA medical expert opinion attributing the current disability to that injury in service. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998) (in adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence); see also Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, namely whether the alleged back injury in service is responsible for current abnormalities of the spine, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, to sustain his claim, the Veteran has to have the supporting medical nexus opinion, but he does in the way of the May 2013 VHA medical expert opinion. The adoption of an expert medical opinion, such as this one, may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if, as here, the expert fairly considered the material evidence supporting the Veteran's position. See Wray v. Brown, 7 Vet. App. 488, 493 (1995). The record contains only one competent and credible medical nexus opinion regarding this determinative issue of causation, which is whether the Veteran suffers from a back disability that is due to the back injury in service. This supporting opinion therefore is not refuted. And inasmuch as it establishes the required correlation between the Veteran's military service and, in particular, his injury in service, and his current back disability, service connection for residuals of that back injury in service is warranted. 38 C.F.R. § 3.303; Shedden, supra. This is especially true when resolving all reasonable doubt concerning this in his favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Instead, this only need be an as likely as not proposition. And in this instance, at the very least, it is. ORDER The claim of entitlement to service connection for residuals of a back injury is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs