Citation Nr: 18140240 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 14-31 598 DATE: October 2, 2018 ORDER Entitlement to service connection for lumbosacral strain with radiculopathy is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s lumbosacral strain is at least as likely as not related to an in-service car accident. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for lumbosacral strain with radiculopathy are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from June 1980 to June 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA) in which the RO denied service connection for a back condition and service connection for posttraumatic stress disorder (PTSD). The Veteran timely filed a notice of disagreement (NOD) and a substantive appeal, via a VA Form 9. In March 2018, the Veteran and family members testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In a May 2018 Board decision, the Board granted service connection for a psychiatric disorder; thus, resolving the claim previously on appeal. 1. Entitlement to service connection for lumbosacral strain Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). At the outset, the Board notes that service treatment records (STRs) are unavailable. In June 2013, a formal finding of unavailability letter was provided by Joint Services Research Records Center (JSRRC) explaining all efforts to obtain the unavailable STRs. When a Veteran’s STRs are unavailable through no fault of his own, VA’s duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinksi, 1 Vet. App. 401, 406 (1991) and O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). In addition, when VA is unable to produce records that were once in its custody an explanation should be given a claimant as to how STRs are maintained, why the search that was conducted constitutes a reasonably exhaustive search, and why further efforts are not justified. 38 U.S.C. § 5103A (b)(2); 38 C.F.R. § 3.159 (e)(1). The above discussion reflects that VA took appropriate steps to look for the complete service record and provided proper notification to the Veteran of its inability to do so, and therefore complied with its heightened duty to assist. Post-service, VA treatment records from January 2012 reflect the Veteran’s complaint of back pain. In a March 212 statement, the Veteran reported that he was injured in an automobile accident in September 1981. In May 2012, he reported that this car accident caused injury to his back. In a December 2017 letter from Dr. P.G., he reported that the Veteran had degenerative disc disease. In a February 2018 statement from the Veteran’s sister, she reported that she saw him after the accident and he complained of various physical aches and pains, including his back. During the March 2018 Board hearing, the Veteran testified about the accident and how it affected him mentally and physically. He reported that he felt the physical effects since the accident. A June 2018 private examination report from Dr. P.G. notes that the Veteran has chronic back pain described as chronic lumbar radiculopathy. He reported that it is at least as likely as not (equal to or greater than 50 percent chance) that the Veteran’s chronic back pain is related to the motor vehicle accident that the Veteran sustained while serving in the Army. As rationale, he reported that it was the date of onset and kinetic energy of the accident that provided a basis for his conclusion. A July 2018 Disability Benefits Questionnaire (DBQ) report reflects a diagnosis of lumbosacral strain with radiculopathy (bilateral sciatic nerve). The Veteran reported that the date of onset of the symptoms is September 1981. He reported that the condition began when he was in a car accident and started having back pain. He stated that he was seen at a hospital and had physical therapy and X-rays. He reported he did not have any surgery and could not recall if any medication was given. He reported that the condition has gotten worse and he has daily pain. The examiner found that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. As rationale, the examiner reported that there are no findings in the medical records provided indicating issues while in service or following years to ascribe service correlation to current diagnosis devoid of speculation. He reported that injury from the car accident in service would most likely present closer to time of injury rather than three decades later. Additionally, he found that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. As rationale, he said that he was unable to show a pathophysiologic correlation between mental disorder as a cause of physical back pain/pathology. He reported that history obtained noted that the back pain was from a motor vehicle accident. Upon review of the evidence of record, the Board finds that service connection for lumbosacral strain with radiculopathy. Initially, the Board finds that the Veteran has a current diagnosis of lumbosacral strain with radiculopathy as reflected by the medical examination reports. Therefore, the Veteran has met the current disability requirement. Additionally, in the May 2018 Board decision, the Board found that the statements submitted by the Veteran and the testimony from his family members support his contention that a September 1981 motor vehicle accident occurred. The Veteran was granted service connection for anxiety as a result of this accident. Therefore, the Veteran has met the in-service disease or injury requirement. Hence, the dispositive issue is whether the Veteran’s back disability is related to his in-service accident. The July 2018 DBQ report reflects a lack of relationship between the Veteran’s current back disability and the in-service accident. However, it appears that the examiner did not take into consideration the Veteran’s statements; specifically, that he experienced back pain since September 1981 following the motor vehicle accident. The examination report focused on a lack of evidence of treatment of the back disability following the Veteran’s in-service accident. 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 opinion is 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”). In contrast to the above opinion, Dr. P.G.’s positive medical opinion was based on the Veteran’s statements as well as a physical examination. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). To be adequate, an examination must take into account an accurate history. Nieves-Rodriguez v. Nicholson, 22 Vet. App. 295 (2008). The Board notes that, to the extent that the opinion relied, in part, on the service history provided by the Veteran, such reliance only warrants the discounting of a medical opinion in certain circumstances, such as when the opinion is contradicted by other evidence in the record or when the Board rejects the statements of the veteran. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006). Here, the Board has found the Veteran’s statements to be credible. Thus, the Board finds this opinion to be probative. Given the adequate positive medical nexus opinion and competent, credible lay statements of the Veteran, the evidence is at least evenly balanced as to whether the Veteran’s back disability is related to his in-service accident. 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 lumbosacral strain with radiculopathy is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel