Citation Nr: 1740455 Decision Date: 09/19/17 Archive Date: 10/02/17 DOCKET NO. 12-07 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1997 to January 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2007 and February 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Board notes that the Veteran's claim for service connection for the above issue was first denied by the RO in October 2007. New and material evidence was received by the RO in January 2008. Pursuant to 38 C.F.R. § 3.156(b), such submission held open the appeal period and required the RO to readjudicate the claim. The RO readjudicated the claim in its February 2008 rating decision to which the Veteran submitted a timely Notice of Disagreement to the February 2008 rating decision and thus perfected an appeal. Thus, the claim for service connection for a lumbar spine disorder is an original claim. In March 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in Los Angeles, California. A transcript of this hearing was prepared and associated with the claims file. Additional evidence was received at the hearing with a waiver of initial RO consideration thereof. The record was also held open for 60 days for the submission of additional evidence, which was received in May 2017. FINDING OF FACT The evidence of record is in relative equipoise as to whether the Veteran's low back disability is proximately due to or the result of an in-service injury. CONCLUSION OF LAW The criteria for service connection for a low back disability have been met. 38 U.S.C.A. §§ 101, 106, 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in 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. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In the present case, the evidence demonstrates that the Veteran has a chronic thoracolumbar strain. See December 2007 Dr. C.S. Medical Opinion. The Veteran was seen by Dr. C.S. for a complete orthopedic and neurological examination in December 2007. Upon examination and additional testing, to include an MRI, the examiner concluded that a chronic thoracolumbar strain was the correct medical diagnosis of the Veteran's condition. The first element of service connection is established. The Board also finds that the Veteran suffered a low back injury while in active service. The Veteran reported that in August 2000 he fell approximately 30 feet into a lagoon while on liberty in Croatia. See March 2017 Hearing Transcript. Upon entering the water, he stated that he could hear a ripple effect of his vertebrae and felt a pinching in his lower back. Id. He reported difficulty walking and that he reported to the sick bay upon return to his ship. Id. Service treatment records document and corroborate the Veteran's fall, subsequent treatment, and lay statements. See August 2000 Treatment Records. Thus, the second element of service connection is established. Turning to the question of whether there is a nexus, or link, between the current shown disability and service, the Board finds that the evidence is, at least, in relative equipoise. In a December 2007 private medical opinion, Dr. C.S., an orthopedic surgeon, opined that the Veteran had chronic low back pain that required treatment since 2000 with pain starting from an injury while serving in the Navy. Dr. C.S. based his conclusion on an interview with the Veteran and a physical examination. MRI testing was done which confirmed a diagnosis of a chronic thoracolumbar strain. The Veteran underwent a VA examination in July 2011. After review of the Veteran's claims file, as well as a physical examination, the examiner opined that the etiology of the Veteran's current back condition was less likely than not caused by or a result of the back pain/strain in service. The examiner noted that the Veteran's service records only indicated one episode of back pain with several doctor visits over 4-5 days after falling into a lagoon. The examiner indicated that the Veteran's exit interview denied any claim as to persistent back pain even though he reported that back pain was persistent since August 2000. However, the examiner relied on the Veteran's lack of seeking medical treatment for back pain post-service as rationale for his conclusion that the Veteran's current back disability was not a result of the injury in active service. Additionally, the examiner noted that the abnormality of the Veteran's MRI could have taken place any time after he left service. The Board finds this opinion inadequate as the examiner failed to consider the reported history of back symptoms following service. In an April 2017 private medical opinion, Dr. A.B., an orthopedic spine surgeon, opined that it was more likely than not that the Veteran's ongoing symptoms of a chronic low back disability were related to the traumatic fall he suffered in service. Dr. A.B. reviewed the Veteran's service treatment records relating to his injury and subsequent treatment, as well as performed an in-person examination. Dr. A.B. based his opinion in part on the fact that the Veteran's history of back symptoms began after his traumatic fall in service. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his or her knowledge and skill in analyzing the data, and his or her medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448- 9 (2000). In short, the Board finds that the probative and competent medical evidence in this case demonstrates that it is at least as likely as not that the Veteran's low back disability is etiologically related to his military service. Accordingly, entitlement to the benefit sought on appeal is granted. ORDER Entitlement to service connection for a low back disability is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs