Citation Nr: 1803022 Decision Date: 01/16/18 Archive Date: 01/29/18 DOCKET NO. 11-15 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for degenerative arthritis of the spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to October 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which, inter alia, denied an application to reopen a claim for service connection for a low back condition. In November 2014, the Veteran testified during a Board hearing before a Veterans Law Judge (VLJ); a transcript of the hearing is of record. In October 2017, the Veteran was sent a letter informing him that the VLJ was no longer with the Board and he had the right to another hearing. The Veteran responded in November 2017 that he did not want to appear at another Board hearing and requested that the Board consider his case based on the evidence of record. In February 2015, the Board reopened the claim for service connection for a low back disability, and remanded the claim for further development. In December 2016, the Board again remanded this matter for further development. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's degenerative arthritis of the spine is related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for degenerative arthritis of the spine have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that VA has certain duties to notify and assist the Veteran. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Given the favorable action taken below concerning the claim on appeal, the Board will not discuss further whether those duties have been accomplished. The Veteran contends that he suffers from a lower back disability as a result of an in-service injury while carrying heavy cases of food. He stated that since that incident, he has had low back pain, for which he has self-medicated himself with alcohol and pain pills. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §1131; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In a June 1968 service treatment record (STR), the Veteran complained of back pain and he was diagnosed with sacroiliac strain. In a June 2009 statement by the Veteran's daughter, she provided a history of the Veteran's overall health in which she stated that the Veteran was contemplating a back surgery in the mid-1980s. During the November 2014 Board hearing, the Veteran testified that he injured his back during service when he was carrying heavy cases of food. The Veteran described that while carrying the cases of food, his back began to hurt a lot that he had to go to the sick bay. The Veteran stated that the doctors at the sick bay did not think the back injury was severe enough and told the Veteran to take some aspirin and "to live with a little bit of pain for a few days until it goes away." The Veteran stated that his back continued to hurt and he believed that doctors at the sick bay did not want to treat him for a back injury that they did not think was serious. The Veteran continued that as a result, he began self-medicating himself by drinking alcohol. The Veteran stated that after his injury, his back would hurt all the time. The Veteran's wife testified that she had only known the Veteran since shortly after he left the military and that he has always complained about his back. The Veteran's wife stated that the Veteran would always ask for a massage or cold packs on his back. The Veteran's wife stated that she had to force the Veteran to seek treatment for his back because it was resulting in the Veteran drinking more alcohol that were causing marital problems. In August 2015, the Veteran was afforded a VA examination. The examiner diagnosed the Veteran with lumbosacral strain and degenerative arthritis of the spine. The examiner opined that the Veteran's degenerative arthritis of the spine is less likely than not the result of the sacroiliac strain noted over 45 years ago during service. The examiner reasoned that no documentation is available to suggest a chronicity of a sacroiliac strain during active duty or within several years after separation. In a December 2016 remand, the Board found the August 2015 VA nexus opinion inadequate. The Board reasoned that probative value could not be given to the VA examiner's opinion because it did not consider the competent and credible reports of low back pain since service. In January 2017, the RO obtained an addendum medical opinion. The reviewer opined that the Veteran's current low back disability is less likely than not the result of the sacroiliac strain noted over 45 years ago. The reviewer again reasoned that no documentation is available to suggest a chronicity of a sacroiliac strain during active duty or within several years after separation. The reviewer did not discuss the Veteran's or his wife's reports of low back pain since service. As indicated above, the VA examiner did not fully address the Veteran's or his wife's contentions of back pain since service or the Veteran's reports of self-medicating with alcohol over the years. Rather, the examination reports focused on a lack of evidence of treatment between the Veteran's in-service incident of sacroiliac strain during service, and his current degenerative arthritis of the spine. However, the lack of treatment is not dispositive if there is competent, credible evidence of symptoms during the relevant time period, as is the case here. Thus, the opinions are inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that a VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). At this point, even though a remand with the directive of obtaining yet another nexus opinion regarding the etiology of the degenerative arthritis of the spine could be ordered, it would not be appropriate because a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). There is evidence of in-service back symptoms and injury, and competent and credible lay evidence of continuous back symptoms from the time of the in-service injury to the present. This is a sufficient basis on which to establish a nexus between the current degenerative arthritis of the spine and the in-service injury in the circumstances of this case. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006)("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's degenerative arthritis of the spine is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for this disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. ORDER Service connection for degenerative arthritis of the spine is granted ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs