Citation Nr: 1807677 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-15 671A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. D'Allaird, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1978 to January 1980 with additional periods of active and inactive duty for training (ACUDTRA and INACDUTRA). This matter is before the Board of Veterans' Appeals (the Board) on appeal from a June 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran's claim for entitlement to service connection for a right shoulder disability, previously associated with this appeal stream, was granted by the RO in a February 2017 rating decision. His claim for entitlement to service connection for PTSD, also previously associated with this appeal stream was granted by the Board in a January 2016 decision. As such, those issues are not in appellate status and will not be addressed here. The Board remanded this claim in January 2016 for further development. FINDING OF FACT It is reasonably shown that the Veteran's currently diagnosed low back disability began in service and has persisted since that time. CONCLUSION OF LAW Service connection for a low back disability is warranted. 38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Any error in notice or assistance is harmless given the favorable determinations. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Some chronic diseases (to include arthritis) may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within a specified period of time post-service (one year for the aforementioned disability). 38 U.S.C. §§ 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. When certain chronic diseases are at issue, such as the above-noted disease or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptoms. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied. If the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Here, the Veteran was afforded a VA examination in December 2016 which provided diagnoses of degenerative arthritis of the spine, invertebral disc syndrome (IVDS), and spondylolisthesis. Therefore, the first element of service connection, a current disability, is met. The Veteran submitted a statement dated in May 2011 in which he wrote that while stationed at Fort Leavenworth from 1978 to 1980, he worked as a road duty Military Policeman. One night he assisted in pushing a car which had become stuck in the rain. He stated that the vehicle moved, and he slipped and became pinned against a tree. He was taken to the hospital. The Veteran's Form DD Form 214 states that his military occupation specialty was Military Policeman. The Veteran also submitted a statement from his parent, J.M., dated in December 2013. J.M. stated that between May 1978 and January 1980 the Veteran had told her that he hurt his back while pushing a car and he became pinned against a tree. J.M. further stated the Veteran has complained of back pain for years. The Veteran's ex-spouse, Y.F., also submitted a statement dated in February 2014 in which she wrote that sometime between 1978 and January 1980, the Veteran was injured while on duty. She stated that she had received a phone call informing her that the Veteran had injured his back while pushing a vehicle and that it slid, pinning him against a tree. She was told that he had been taken to the hospital by his patrol supervisor. She further stated that she would give him ice and hot treatments while at home and that he always had problems with his back since that injury. In a statement submitted by the Veteran's fellow service member, P.G., dated in December 2014, P.G. stated that he worked with the Veteran as a Military Policeman between December 1977 and July 1980. He wrote that he was advised by other duty personnel at the time that the Veteran injured his back while pushing a vehicle. He recalled the Veteran being off duty for recuperation. The Board notes that attempts by the RO to obtain documentation of this incident have been unsuccessful. However, based upon the serval lay statements submitted by the Veteran attesting to the event, the Board finds that the second element of service connection, an in-service event or injury, is satisfied. Finally, the lay statements submitted by the Veteran have also attested that the Veteran has complained of back pain since that in-service injury. Therefore, based upon a continuity of symptoms since service, the Board finds that the third element of service connection, a nexus, is also satisfied. The Board notes that the December 2016 VA examination provided a negative nexus opinion, while the Veteran obtained a positive nexus opinion from his VA treatment provider in March 2016. The Board finds no basis to accord greater probative value to either statement, as the VA examiner did not consider the lay statements of record, and the treatment provider's opinion was speculative. In view of this and the credible lay evidence of record, the Board considers the positive and negative evidence to be in relative equipoise. Accordingly, the Veteran is entitled to service connection for a low back disability. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a low back disability is granted. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs