Citation Nr: 18157866 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-55 099 DATE: December 14, 2018 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for a lower back condition, claimed as secondary to right knee strain, left knee strain, and/or plantar fasciitis, is granted. Entitlement to service connection for a lower back condition, to include as secondary to right knee strain, left knee strain, and/or plantar fasciitis, is granted. FINDING OF FACT 1. The Veteran has a current lower back condition, diagnosed as a lumbosacral strain. 2. The evidence of record is at least in equipoise as to whether the Veteran’s lower back condition was incurred in or due to her active duty. CONCLUSION OF LAW The criteria for establishing to service connection for a lower back condition, diagnosed as a lumbar strain, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1978 to June 2003. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO) in Winston-Salem, North Carolina. The Veteran previously submitted a claim of entitlement to service connection for a lower back condition which was denied in a July 2003 rating decision on the basis that the Veteran did not have a current disability and there was not a link between her lumbar strain and service. Then the Veteran claimed service connection for her lower back condition to include as secondary to her service connected leg length condition. The RO considered this a new claim but her claim was denied again in a May 2004 rating decision on the basis that she did not have a current disability. The May 2004 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claim within the appeal period. Therefore, the May 2004 rating decision is final based on the evidence then of record. See 38 C.F.R. § 3.156(b). The evidence received since the May 2004 rating decision includes evidence that is both new and material to the claim. Consequently, as the newly received evidence indicates that the Veteran has a current disability, that may be related to her military service, the Board finds that such newly received evidence is not cumulative or redundant of the evidence of record at the time of the May 2004 decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a lower back condition. Thus, the Board finds that new and material evidence has been received sufficient to reopen the previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service Connection Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303 (b), (d). Entitlement to service connection for a lower back condition, to include as secondary to right knee strain, left knee strain, and/or plantar fasciitis The Veteran has a current diagnosis of a lumbosacral strain. See VA examination, December 2015. In support of her claim the Veteran has submitted lay statements noting the onset of her back symptoms in service. Specifically, the Veteran reported that she hurt her back during service due to a fall. See Veteran Statement, November 2016. This statement is corroborated by the Veteran’s service treatment records (STRs) which show a complaint of lower back pain. Her STRs note that she fell down on cement in January 1999. See STRs. Turning to whether there is a medical nexus, the December 2015 VA examiner opined that the Veteran’s diagnosed lumbosacral strain was related to her fall during service. The Veteran reported to the examiner that she began experiencing back pain in January 1999 when she “fell off a building onto a cement privacy wall.” The examiner stated that the “[Veteran’s] back condition is due to a fall that occurred in 1999.” See VA examination, December 2015. The evidence of a link between a current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Lay testimony is competent to establish the presence of observable symptoms and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, the Board finds that the Veteran’s lay testimony, as well as the opinion of the December 2015 VA examiner, when viewed together, provide sufficient support for the present claim. Although there is evidence in the form of a January 2016 VA examination report disassociating the Veteran’s current lower back condition from her active service, the examination report does not constitute probative medical evidence, as it fails to adequately account for the Veteran’s competent and credible lay statements, as to the event that caused her lower back injury. Further, the VA examiner did not thoroughly go through the Veteran’s file as he states, “based on the record reviewed, there is no injury, illness or event” during the Veteran’s service that suggest a chronic disability, specifically failing to address the Veteran’s STRs showing that the Veteran suffered a fall in service or reconciling this event with his ultimate conclusion. Accordingly, the January 2016 VA examination report is inadequate, and cannot form the basis for a denial of entitlement to service connection. See Nieves-Rodriguez, 22 Vet. App. at 304 (indicating “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.”). (Continued on the next page)   Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for a back disability is warranted. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dion Roberts, Law Clerk