Citation Nr: 1808050 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-15 777A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to December 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In his May 2014 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge sitting at the RO. He was subsequently advised that his requested Board hearing had been scheduled for March 2017. Thereafter, he failed to appear for his scheduled Board hearing and he subsequently asked to reschedule the hearing. Even so, the Board finds no prejudice to the Veteran in proceeding with a decision at this time as the Board grants his claim in full and, as such, the outcome is entirely favorable to him. FINDING OF FACT The Veteran's current low back disability, to include chronic vertebral osteophytosis with lumbosacral disc derangement, was incurred in-service. CONCLUSION OF LAW The criteria for service connection for the low back disability, to include chronic vertebral osteophytosis with lumbosacral disc derangement, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As this decision is fully favorable to the Veteran, any error in VA's duty to notify and/or assist is harmless. Service connection will be granted for a disability where the evidence shows that the current disability was incurred in or aggravated by incident, disease, or injury in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any material issue or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The medical evidence shows that the Veteran has a current low back disability. Treatment records from April 2007 indicate that the Veteran had chronic vertebral osteophytosis. It was also noted that he had probable lumbrosacral disc derangement with possible associated foraminal stenosis. A private chiropractor described the Veteran as having back pain and deterioration in April 2012. In June 2012, a VA examiner noted a thoracolumbar back disorder with back pain. 7/2/2012 CAPRI Legacy, at 1, 4; 4/20/2012 Third Party Correspondence; 6/24/2012 VA Examination. The Veteran contends that his current low back disability is related to an injury that he sustained during combat while in Vietnam. In the case of a veteran who engaged in combat with the enemy in active service during a period of war, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran's DD 214 indicates that he served on active duty from March 1970 to December 1971, including service in Vietnam. He received, among other awards, the Bronze Star Medal with V Device and the Vietnam Gallantry Cross with Palm awards. His military occupational specialty was water crafter operator. A prior VA determination, in July 2011, regarding hearing loss and tinnitus conceded combat noise exposure. The Veteran has also stated that he was in combat while in Vietnam. His reported back injury is consistent with the circumstances, conditions, or hardship of his combat service, and the Veteran has credibly relayed the event. In view of the above, the Board finds that the Veteran is entitled to the combat presumption. 38 U.S.C.A. § 1154(b). The Veteran has asserted that he injured his back in Vietnam. He conveyed that he slipped on the deck of a boat while carrying a case of grenades and landed on his tailbone. He was unable to report to sick call at the time as there was no one else to drive the boat on patrol. The only evidence of this event is the Veteran's own lay statements. He is competent to describe his in-service injury, as it is factual in nature. Furthermore, the Board finds his account of his injury and in-service duties to be credible, especially in light of his combat service. 7/26/2012 VA 21-4138 Statement in Support of Claim; 6/27/2014 Form 9. The question remains whether there is a nexus, or link between the current shown low back disorder and the Veteran's military service. The Veteran's private practitioner provided a positive opinion after examination in April 2012. He was found to have nerve damage and pain in his lumbar spine. His doctor opined that the deterioration displayed in x-rays taken was consistent with the description and timing of the Veteran's injury in-service. 4/20/2012 Third Party Correspondence. A VA examiner in June 2012 opined that the Veteran's low back disability was less likely than not incurred in or caused by an in-service injury. The examiner based his opinion on the fact that he was unable to find any objective entries regarding the lower back in the Veteran's service treatment records. 6/24/2012 VA Examination. The VA examiner's rationale did not address the Veteran's combat experience and the injury the Veteran indicated that he suffered in the combat theatre of operations. The VA examiner based his opinion on the absence of documentation of back injury in the service treatment records. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that a VA examination was inadequate because the examiner failed to comment on the Veteran's report of an in-service injury and relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). The Board thus finds the opinion of the VA examiner to be of reduced probative value. In Reeves v. Shinseki, the Federal Circuit ruled the combat presumption applies to two separate issues, the in-service incurrence injury or disease and the in-service presence of the disability. 682 F.3d 988, 999 (Fed. Cir. 2012). The Federal Circuit stated that, even where the record contains evidence of the cause of a disability, a combat veteran has "the right to invoke section 1154(b) presumption in order to show that he incurred the disability itself while in service." Id. at 999 (internal citations omitted). The effect of invoking the presumption in this fashion is to make establishing a nexus between service and the current disability easier. Id. The Veteran has credibly asserted that he injured his back in-service and continues to have low back problems. Additionally, the April 2012 competent medical evidence reflects a positive nexus opinion between his low back disability and active service. Therefore, resolving any doubt in the Veteran's favor, service connection for the Veteran's low back disability is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for a low back disability, to include chronic vertebral osteophytosis with lumbosacral disc derangement, is granted. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs