Citation Nr: 1800388	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  17-57 832	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to service connection for a low back disability.


ATTORNEY FOR THE BOARD

Jonathan Z. Morris, Associate Counsel


INTRODUCTION

The Veteran had active military service from September 1960 to September 1990.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran's lumbar spine disability is etiologically related to his active service.


CONCLUSION OF LAW

The criteria for service connection for lumbosacral strain have been met.  38 U.S.C. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303(b), 3.304 (2017)


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  In this case, the Board is granting in full the benefits sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.

II.  Legal Criteria for Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Generally, to successfully establish service connection, there must be competent and credible evidence showing (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the disease or injury incurred in or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain "chronic diseases" may be presumed to have been incurred in or aggravated by service if they manifest to a degree of 10 percent or more within one year of a Veteran's separation from service.  38 C.F.R. §§ 3.307, 3.309(a).  This presumption is rebuttable by probative evidence to the contrary.  Id.

When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question.  Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b).  There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.  Walker, 708 F.3d at 1336.

Where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately question, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service to, in turn, link current disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating that : (1) the condition was observed ("noted") during service; (2) symptoms of that condition continued after service; and, (3) the current condition is related to those continuing symptoms.

Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service.  38 C.F.R. § 3.310.  In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities.  Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998).  In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition.  See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b).

Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.

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.  38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a).  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra.


III.  Service Connection for Low Back Disability

The Veteran seeks service connection for a disability manifested by chronic low back pain, which he contends had its onset during service and he has continued to experience symptoms since separation.  He was afforded a VA examination in January 2017, where the examiner documented a current diagnosis of lumbosacral strain and spondylosis.  The examiner indicated that the onset of the Veteran's condition was in 1970, where he was treated for lumbar strain.  The examiner also noted that the Veteran has had multiple episodes of back pain since the initial injury sustained during physical training.  Ultimately, however, the examiner concluded that the Veteran's claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by his service.  In support of this determination, the examiner stated that there were no medical records to support service connection and, additionally, the examiner identified a treatment record dated in July 2007 from Dr. B.P. that reflects the Veteran's pain began after playing golf.

The Board finds the January 2017 VA medical opinion inadequate for several reasons.  First, the examiner's negative nexus opinion was based on a lack of STRs showing treatment for a back condition.  However, the lack of evidence cannot be treated as substantive negative evidence.  In other words, reliance on the lack of medical evidence, especially without consideration of lay statements, is an inadequate rationale.  The Court has held that the mere absence of evidence does not equate to unfavorable evidence.  See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence); see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service).  In fact, while the examiner relied on a lack of supporting service medical records, the Veteran's August 1990 retirement examination explicitly documents his complaints of recurrent back pain since a 1975 squash injury.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

During the pendency of this appeal, the Veteran has consistently asserted that he experienced recurrent back pain during his active military service, which has continued since his separation from service.  Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.  Savage v. Gober, 10 Vet. App. 488, 496 (1997).  In this case, the Veteran's assertions that he has continuously experienced pain in his back since his service are considered competent evidence.  See Layno, 6 Vet. App. at 469-70.  In light of the foregoing, the evidence supporting the claim is, at the very least, as probative (meaning as competent and credible) as the evidence against the claim.  Therefore, the Board is of the opinion that the point of equipoise has been reached in this appeal.  While the January 2017 VA examiner provided an inadequate medical opinion against a finding of service connection, the remaining medical evidence of record shows a positive connection between the Veteran's documented in-service recurrent back pain, a continuity of symptomatology since separation, and his current disability.

Undoubtedly, further medical inquiry can be undertaken with a view towards further developing this claim.  However, in this regard, the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted (or, at worst, evenly balanced for and against the claim) and indicated that it would not be permissible to undertake further development in this circumstance if the sole purpose was to obtain evidence against an appellant's claim.  See Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  But see also Douglas v. Shinseki, 23 Vet. App. 19 (2009) (distinguishing Mariano and contrarily holding that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim).  

Accordingly, the criteria for presumptive service connection for lumbosacral strain under 38 C.F.R. § 3.303(b) have been met.  38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

Entitlement to service connection for lumbosacral strain is granted.



____________________________________________
M. H. Hawley
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs