Citation Nr: 18152683 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 16-37 954 DATE: November 27, 2018 ORDER Entitlement to service connection for lumbosacral strain is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s lumbosacral strain is related to service. CONCLUSION OF LAW The criteria for service connection for lumbosacral strain have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy during the Gulf War Era from September 2006 to December 2009. This case is on appeal before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 1. LUMBOSACRAL STRAIN Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. 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 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). On the August 2014 VA examination, the Veteran was diagnosed with lumbosacral strain. He has thus met the current disability requirement. In the September 2009 separation report of medical history, the Veteran noted back pain. Back pain was also consistently noted in both VA and private examination reports through 2016. Thus, the evidence reflects back pain in and since service. In this regard, service connection does not require an in-service injury or disease that is the cause of a veteran’s current disabilities to the exclusion of an in-service event that might be the cause thereof. See Duenas v. Principi, 18 Vet. App. 512, 517 (2004) (explaining that service connection requires some evidence of an inservice event, injury, or disease); 146 CONG. REC. H9912, H9917 (daily ed. Oct. 17, 2000) (statement of Rep. Evans) (discussing the Veterans Claims Assistance Act of 2000 and explaining that the law would require the Secretary to provide a medical examination on nexus to a veteran who (1) has evidence of arthritis of the knee and (2) indicates the condition was due to his in-service duties as a paratrooper). Here, the Veteran has been diagnosed with a current disability of lumbosacral strain and received treatment for back pain while in service and consistently after service. Although the Veteran’s DD Form 214 indicates that his military occupation specialty (MOS) included infantry and gun crews, the Veteran testified during the Board hearing that his MOS was undesignated and he was required to complete all ship-wide drills where he was required to fifty pounds of gear and climb up and down ladders causing significant strain on his back. The Veteran is competent to report the onset and persistent nature of his symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). There is nothing in the claims file to indicate that the Veteran’s statements as to the onset of his back pain in service and that it was continuous or recurrent since service are not credible. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). Thus, the Board finds that the lay statements as to experiencing back pain in service with continuity of symptomatology since service are competent and credible. A VA examiner in August 2014 incorrectly wrote that VA service treatment records did not note any problems relating to the Veterans back and based his analysis on this conclusion. Medical opinions based on an inaccurate factual premise are not probative. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). The August 2014 negative nexus opinion is therefore of no probative weight. (Continued on the next page)   The evidence is thus at least evenly balanced as to whether the Veteran’s back pain existed during service and was thus incurred coincident with service. 38 C.F.R. § 38 C.F.R. § 3.303(a) (“service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces”). 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 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laura A. Saracina, Law Clerk