Citation Nr: 18148633 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 17-11 893 DATE: November 8, 2018 ORDER Entitlement to service connection for back disability is granted. FINDING OF FACT The evidence is at least in equipoise that the Veteran’s back disability is etiologically related to his military service. CONCLUSION OF LAW The criteria for service connection for back disability have been met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1961 to April 1981. He was awarded the Combat Infantryman’s Badge for his service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In August 2018, the Veteran appeared at a videoconference hearing before the undersigned. A transcript of the hearing is of record. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2018). The record reflects that service connection for a cervical spine disorder, also previously claimed as an upper back disorder was previously denied in a June 1997 rating decision. The current claim filed by the Veteran is for a “back” disability, and the Veteran has made clear this involves the lower back, middle back, and upper back (i.e., cervical spine). It is unclear from the manner in which the RO developed the claim whether the RO considered the cervical spine in its denial of compensation benefits. In any event, the Board finds that the instant appeal includes the cervical spine, and finds that new and material evidence has been received to reopen that portion of the claim. The Board notes that the Veteran submitted a notice of disagreement (NOD) in January 2018 with respect to issues concerning left elbow arthritis, left shoulder scar, bilateral hearing loss, diabetes mellitus, and left elbow limitation of flexion. The record reflects that the RO has acknowledged the NOD and is actively processing the it. The Board consequently will not take further action on those claims at this time. Compare Manlincon v. West, 12 Vet. App. 238 (1999). Additionally, the Board notes that the Veteran had submitted a NOD in July 2014 with respect to his claims for degenerative arthritis of the spine and an increased rating for his service-connected posttraumatic stress disorder. The Form 9, certifying the appeal to the Board, listed the back condition as the sole issue on appeal. Therefore, the Board does not have jurisdiction over the additional issue. The Board acknowledges that the Veteran, through his attorney, claims that the January 2017 VA examination was inadequate. The examiner considered the Veteran’s report of his in-service injury, conducted in-person clinical testing, and provided an opinion based on the in-service and post-service medical treatment records. As such, the Board finds the examination and opinion are not inadequate. Given the favorable disposition herein, which is not prejudicial to the Veteran, no further discussion of VA’s duties to notify or assist is necessary. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Back disability Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease 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). With respect to combat veterans, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service, notwithstanding the fact that there is no official record of incurrence or aggravation in service, and shall resolve every reasonable doubt in favor of the veteran. Service connection of the injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(d) (2018). However, that 38 U.S.C. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disability etiologically to the current disability. Libertine v. Brown, 9 Vet. App. 521 (1996). The statute does not establish service connection for a combat Veteran. It aids the Veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. A Veteran must still generally establish the claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. Gregory v. Brown, 8 Vet. App. 563 (1996); Kessel v. West, 13 Vet. App. 9 (1999). In determining whether service connection is warranted for a disability, VA is responsible for deciding 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). The Veteran asserts that his back disability is a result of an injury incurred while serving in Vietnam. Specifically, the Veteran has consistently reported that he was on top of a track vehicle when a B40 rocket exploded in front of the vehicle. The Veteran reported that the vehicle protected him from shrapnel but not from the concussive blast which knocked him inside the vehicle where he landed on an ammunition box, thus injuring his back. The Veteran’s entrance examination and service treatment records (STRs) are silent for any complaints, treatment, or diagnosis related to his back disability. The earliest post-service medical treatment records associated with the claims file are dated from May 2006, decades after the Veteran’s active service. Post-service treatment records reflect that the Veteran experienced chronic back pain. In December 2009, the Veteran received a diagnosis of intervertebral disk disease. The Veteran’s treating physician provided a positive nexus opinion for the back condition in a statement dated in November 2016. The physician indicated that he had been treating the Veteran for over 10 years and was familiar with the progression of the back disability and the Veteran’s reported military history, and it was the physician’s opinion that the Veteran’s chronic ongoing back pain related directly to his injury sustained while in service. The Veteran was afforded a VA examination in January 2017, which provided a diagnosis of degenerative arthritis of the spine. After reviewing the Veteran’s history and conducting an examination, the examiner concluded the degenerative arthritis of the spine was less likely than not incurred in or caused by service because there was no evidence of a diagnosis or treatment of a lower back condition for over 20 years after separation from active service. During his hearing, in addition to recounting the event in service that he claimed caused his back injury, the Veteran testified that he experienced stiffness and soreness in his back for 20 years after service, but he was able to relieve the pain with movement and exercise. However, he reported that in 1989, he experienced such great pain that he went to the hospital. He indicated that he was instructed to see a chiropractor to aid with his back condition, which the Veteran indicated he did for the next 25 years. The Board recognizes the inconsistent diagnoses in the record. The Veteran’s post-service treatment records reflect a diagnosis of intervertebral disk disease, and the VA examination noted a diagnosis of degenerative arthritis of the spine. The Board finds that service connection is warranted for the back disability that is currently afflicting the Veteran. Accordingly, the Board finds no prejudice to the Veteran will result in the adjudication of his claim. Concerning an in-service event, illness, or injury, the evidence of record clearly shows that the Veteran was a combat veteran and that the provisions of 38 U.S.C. § 1154(b) apply. The Veteran’s military personnel records indicate his military occupational specialty (MOS) was Infantry Officer and reflect multiple deployments to Vietnam. As indicated above, among the Veteran’s awards and achievements in service, he was the recipient of the Combat Infantryman’s Badge. As the events reported by the Veteran are consistent with the circumstances and conditions of his service, the combat injury is presumed. 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(d) (2018). Regarding the nexus, given the conflicting medical opinions of record, the Board finds the evidence is at least in equipoise as to whether the current back disability originated in service. The private medical opinion notably was not based on a review of the service records, though the account offered to the physician by the Veteran was consistent with his other reporting of the events surrounding his injury. The VA examiner relied on the absence of post-service medical treatment records in providing the opinion. The Board is unable to afford greater probative value to one opinion over the other. Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for back disability is warranted. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel