Citation Nr: 18151667 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 15-08 416 DATE: November 19, 2018 ORDER Entitlement to service connection for a low back disorder is granted. FINDING OF FACT The Veteran’s low back disorder is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative disc disease of the lumbar spine have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from 1968 to 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran presented sworn testimony at a hearing before the undersigned in May 2015. LOW BACK DISORDER The Board finds that service connection for a low back disorder is warranted. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a layperson, (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. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); see also Jandreau, 492 F.3d 1376 -77. In this case, the Veteran was diagnosed with degenerative disc disease of the lumbar spine. See August 2013 VA Examination Report. Further, his service treatment records show that during service he sustained injury to his back that required bed rest and muscle relaxers. Thus, the crux of this case is whether the Veteran’s current disability is causally linked to his in-service injury. As discussed above, nexus can be established by lay testimony describing symptoms that support a later diagnosis, which Veteran has provided in this instance. A Veteran is competent to testify to any pain he has suffered, and “his testimony can only be rejected only if found to be mistaken or otherwise deemed not credible.” CFR 3.159(a)(2); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the Veteran contends that that he has experienced continuous pain since his in-service injury. In 2011, the Veteran wrote, “I have continued to have chronic complications with my low back since my separation from active duty.” November 2011 Application for Compensation or Pension (Form 21-526). When the Veteran first sought treatment for his in service, his treating doctor told him “more than likely [he] was going to suffer forever.” December 2011 Statement in Support of Claim (Form VA 21-4138). Further, the Veteran discussed his treatment throughout the years after leaving service. First, he reports claims that a doctor showed him exercises to relieve pain. Next, the Veteran states that another doctor put him on a “table that has rollers”. Id. Because the Veteran worked in the healthcare field, his treatment was informal and produced no documentation. Finally, the Veteran asserts that he continues to practice those exercises and takes Vicodin for his low back pain. November 2011 Application for Compensation or Pension (Form 21-526). The Veteran in this instance is competent to report recurrent pain from his injury, and the Board find his testimony credible. The Board acknowledges a 2013 VA examination that opines that the Veteran’s present disability is not related to service. In August 2013, a VA examiner stated, “Veteran served 3 years. Afterwards has had extensive career in the healthcare field. Never had surgery or back procedures. No MRI s, etc. He has chronic symptoms of arthritis. Normal wear and tear due to age but not linked to the one injury he relates in 1968.” August 2013 VA Exam. The Board finds that this opinion is inadequate as it fails to address the competent, credible lay evidence of back pain since service. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (citing Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that 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 of service connection could be proven”). The opinion is also problematic as the Board cannot rely on a negative nexus opinion that is predicated on the absence of subsequent medical treatment, particularly where, as here, the Veteran explained why he has no medical documentation of his treatment. Therefore, this examination provides limited probative value. Even though the VA medical opinion in the record is inadequate, the Board concludes that there is sufficient evidence to resolve reasonable doubt in the Veteran’s favor and therefore a remand is not necessary to obtain another medical opinion as the available evidence is sufficient for that purpose. 38 C.F.R. § 3.159 (c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant’s case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Because the only VA examination afforded to the Veteran for this claim is inadequate and of limited probative value, the Board finds that the evidence of record, in considering the Veteran’s lay statements are in relative equipoise. Therefore, the Veteran prevails. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Affording the Veteran the benefit of the doubt, service connection for degenerative disc disease of the lumbar spine is granted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Gillespie, Law Clerk