Citation Nr: 18151670 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 13-27 120 DATE: November 19, 2018 ORDER Entitlement to service connection for a low back disability is granted. FINDING OF FACT The probative evidence of record indicates the Veteran’s current low back disability was caused by the fall during service. CONCLUSION OF LAW The criteria for establishing service connection for a back disability have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from October 1980 to July 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). At a hearing in March 2014, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer with the Board. The Board notified the Veteran in a February 2018 letter that he has the right to testify at a new hearing before a VLJ who will participate in the final determination of his claim. See 38 C.F.R. § 20.707. The Veteran responded in a timely manner, declining a new Board hearing. A December 2016 Board decision denied service connection for a back disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. In a September 2017 order, the Court vacated and remanded the issue to the Board pursuant to the terms of a Joint Motion for Remand, which determined that the opinions upon which the Board had depended were inadequate. The Board then remanded the case for a new medical opinion, and it has been returned to the Board for further appellate review. Entitlement to service connection for a back disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that he suffered an injury to his lower back during service when he fell down a flight of stairs, and that this caused his current back disability. The Veteran’s service treatment records show that he did fall down a set of stairs during service in February 1982. He reported soreness in the right sacroiliac area. The Veteran also reported low back pain in October 1982, November 1982, January 1983, March 1983, and July 1984. The Veteran’s service personnel records reflect that his military occupational specialty was as a fire protection specialist. The Veteran’s VA treatment records reflect that he has current diagnoses of degenerative disc disease of the lumbar spine, sprain/strain of the low back, chronic lumbar and SI dysfunction, and annular tear of the L5-S1. In the prior remand, the Board determined that the presumption of soundness applies to the Veteran’s back and had not been rebutted. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1090 (Fed. Cir. 2004). That is, the Board found that no back disability was clinically noted upon entry into military service, and despite the Veteran reporting a back injury prior to service, there was not clear and unmistakable evidence that a back injury preexisted service, so the Veteran’s back was presumed sound upon entry to service. A nexus opinion was sought in June 2018, in which the examiner opined that it is less likely than not that the Veteran’s degenerative disc disease was caused by or incurred in military service, including the in-service back injury. The examiner reasoned that the degenerative joint disease is more likely caused by other risk factors, because the diagnosis at the time of the February 1982 fall was “relatively mild” with only soreness at the site and the following complaints during service were treated as musculoskeletal pain with no formal diagnosis rendered. The examiner further reasoned that the “fleeting nature” of the back pain until 2011, when it significantly worsened, indicates another cause. In November 2018, the Board obtained an independent medical opinion from an orthopedic surgeon who specializes in spine surgeries. The expert opined that it is at least as likely as not that the current back disabilities had their onset during service, as the Veteran is a non-smoker, and aside from tobacco use, age is the primary etiology for back disorders. The expert reasoned that back pain that began after a fall at age 20 for someone who previously had no trouble working in fire protection, and that required multiple visits to resolve, constitutes premature degeneration to the back that would cause the Veteran’s current back disabilities. The expert further explained that the absence of spondylolysis or spondylolisthesis on x-rays taken at age 45 supports the theory that the current back disabilities were caused by the in-service injury rather than aging. The Board finds the evidence for and against the Veteran’s appeal is at least in a state of relative equipoise. Accordingly, entitlement to service connection for a low back disability is warranted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel