Citation Nr: 18152674 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-42 061 DATE: November 23, 2018 ORDER Entitlement to service connection for a back disability is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s back disability is causally or etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a back disability are met. 38 U.S.C. § 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1985 to January 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. Additional evidence was added to the record following issuance of the November 2016 supplemental statement of the case (SSOC), including private medical treatment records dated from June 1995 to March 2013 and a medical opinion from the Veteran’s treating physician. The Veteran’s representative, in a brief submitted in November 2018, waived RO consideration of new and material evidence. In light of the favorable determination to grant service connection for a back disability, VA’s duties to notify and assist in this appeal are deemed fully satisfied. There is no prejudice to the Veteran in proceeding to decide this issue. 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). Entitlement to service connection for a back disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran claims that he developed a back disability as a result of an injury he sustained in active service. Specifically, he indicates that during a storm he was hit by a falling tree branch in his neck and back. The Veteran’s entrance and separation examinations are silent for any complaints, treatment, or diagnoses related to a back disability. A service treatment record (STR) dated in September 1985 indicates that the Veteran sought treatment for back pain. The note indicates there was no trauma to his back. Shortly thereafter, another record dated in September 1985 reflects a report of back pain after the Veteran’s back was hit by a falling tree. Post-service treatment records dated from 1995 to 2016 document reports of chronic back pain and ongoing medical treatment for the Veteran’s back disability, including numerous surgeries. The records also reflect various back diagnoses, including chronic back pain, lumbar strain, and disc herniation. In November 2016, the Veteran submitted a written statement from his treating physician, indicating that he had treated the Veteran since April 2010 and was familiar with the Veteran’s back problems, medical history, and in-service injury. The physician opined that the in-service injury represents a factor in the Veteran’s ongoing back complaints and need for medical care since his time in service. The Veteran was afforded a VA examination in May 2015, at which time he received a diagnosis of spinal fusion. During this examination, the Veteran described the in-service event that caused his claimed back disability and indicated that he recalled back and leg pain upon discharge from active service. The examination notes that, after service, the Veteran worked as a machinist for ten years, during which time he missed 10 to 15 days of work annually due to neck and back pain. The Veteran indicated that the progressive and unrelenting pain eventually led him to seek treatment, resulting in an extensive spinal fusion and a stimulator implant to help overcome the pain. After considering the Veteran’s in-service injury, STRs, and post-service medical treatment records from 2010 to 2015, the VA examiner opined that the Veteran’s back disability was less likely than not incurred in or caused by his in-service injury. The examiner based this opinion on the lack of records for more than twenty years since the Veteran’s active service. Also, the examiner noted that the Veteran’s STRs included negative X-rays at the time of his in-service injury. The Veteran submitted a lay statement in March 2016, indicating that his back was never the same after his injury in service. He reported that he complained about the pain many times during service but was told nothing could be done. He refrained from making further complaints and lived with the pain thereafter. Despite the inconsistent diagnoses related to the Veteran’s back, the record reflects that the Veteran has a current back disability variously diagnosed as chronic back pain, lumbar strain, herniated disc, and spinal fusion. Thus, the element of a current disability is met. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, as STRs demonstrate an in-service injury and complaints of back pain in September 1985, the second element is also satisfied. Id. With respect to the final element, the evidence of record is at least in equipoise as to whether the Veteran’s back disability is related to his active service. In this regard, the Veteran’s treating physician opined that the in-service injury was a factor in the Veteran’s ongoing back complaints and treatment since service. The physician based this opinion on treatment of the Veteran, his medical records, and his reported history of chronic back pain since service. Although the November 1986 separation examination did not note any pain or abnormalities relating to the Veteran’s back, STRs are positive for an injury and complaints of back pain (specifically in September 1985), and the Veteran has competently and credibly asserted that he has experienced back pain since his active duty. Layno v. Brown, 6 Vet. App. 465 (1994). The Board acknowledges the negative nexus opinion provided by the May 2015 VA examiner. However, the examiner’s rationale seemingly ignored the Veteran’s lay statements regarding continuous symptoms of back pain since service, and relied, instead, on the absence of post-service medical treatment records in providing the opinion. Given the conflicting medical opinions of record, the Board finds the evidence is at least in equipoise as to whether the Veteran’s current back disability originated in service. Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for a back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel