Citation Nr: 19170959 Decision Date: 09/12/19 Archive Date: 09/12/19 DOCKET NO. 14-41 028 DATE: September 12, 2019 ORDER Service connection for lumbar spine degenerative disc disease is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his lumbar spine degenerative disc disease is at least as likely as not related to his service. CONCLUSION OF LAW The criteria for service connection for lumbar spine degenerative disc disease have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1980 to June 1995. On appeal is a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a lumbar spine disorder. A videoconference hearing was held in May 2019. The Veteran and his wife testified, and a transcript of the proceeding is associated with the claims file. Service Connection 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). 1. Entitlement to service connection for a lumbar spine disorder The Veteran contends that he has a lumbar spine disorder as a result of his active service. The question for the Board is whether the Veteran’s current diagnosis of lumbar spine degenerative disc disease began during active service or is etiologically related to an in-service disease or injury. The Board finds that competent, credible, and probative evidence establishes that the Veteran’s lumbar spine degenerative disc disease is etiologically related to his active service. A review of the Veteran’s DD Form 214 shows he served in the United States Army; his military occupational specialty (MOS) was Infantryman, and he earned numerous decorations, to include a Combat Infantryman Badge. Service treatment records are associated with the Veteran’s claims file. In summary, these records reflect the Veteran complained of recurrent lower back pain on multiple occasions during service. An April 1991 Report of Medical History reflects the Veteran indicated he had recurrent back pain. An October 1992 record reflects a complaint of lower back pain and a diagnosis of a strained back. An August 1993 record reflects a follow up appointment for a complaint of back pain. A January 1994 record reflects the Veteran complained of back pains periodically. Finally, a January 1994 Report of Medical History reflects the Veteran indicated he had recurrent back pain, which was confirmed in the physician’s summary. The Veteran’s post service VA treatment records from the Dallas VAMC are associated with the file. A December 2011 record reflects the Veteran complained of ongoing back pain with occasional bilateral lower extremity paresthesias; his past medical history was noted to include lumbosacral disc degeneration. An October 2012 record reflects the Veteran reported back and neck pain that is chronic. A December 2012 record similarly reflects a complaint of chronic low back pain. A July 2017 record reflects a complaint of low back pain for which the Veteran was under the care of a private pain doctor. Private treatment records from Orthopedic Associates are also associated with the Veteran’s claims file. An April 2002 MRI of lumbar spine showed mild degenerative disc disease at L4-L5. A September 2005 letter from the Veteran’s treating physician at Orthopedic Associates reflects the physician had been treating the Veteran for back pain. The physician opined that the Veteran’s back pain is related to his military service. As rationale, the physician stated the Veteran did not have symptoms prior to military service and then thereafter did have them. Private treatment records from the Texas Health Physician’s Group are also associated with the Veteran’s claims file. An October 2011 record reflects the Veteran was seen for evaluation of low back pain. He reported he has had symptoms since 1995 and his pain has been getting worse over time. A November 2011 record reflects the Veteran suffered from low back pain most likely attributable to his diffuse disc bulge at L4/5. The examiner indicated that the Veteran was scheduled for epidural steroid injections. An October 2011 letter from the Veteran’s treating physician at Texas Health Physician’s Group reflects the Veteran had been treated in his office for low back pain that he stated began when he was in the military. The physician stated an MRI of the Veteran’s lumbar spine revealed a diffuse disc bulge. The physician diagnosed the Veteran with lumbar radiculitis and noted the Veteran has elected to proceed with interventional pain management. The physician also opined that the Veteran’s lower back pain is related to his military service. As rationale, the treating physician noted the Veteran did not have these symptoms prior to military service and then thereafter has had them. In June 2012, the Veteran underwent a VA examination. The examiner noted a diagnosis of lumbar spine degenerative disc disease with intermittent radiculitis. The examiner opined that it is less likely than not the Veteran’s lumbar spine condition is related to his acute complaints during service. As rationale, the examiner explained that following service, the Veteran did not seek further treatment until 2002, seven years later, which weighed against a finding of chronicity for the Veteran’s back pain complaints. The examiner further noted that there is no evidence of disc disease, radiculitis, radiculopathy, or any similar diagnosis while on active duty nor proximate to discharge. In May 2019, the Veteran testified before the undersigned Veterans Law Judge. He stated he experienced back pain in service but did not seek treatment. As an example, the Veteran testified that he fell into a trench and landed in an awkward position because he had a rifle, gear, and equipment on his back. He testified further that as an infantryman, he was expected to be ready to fight at any moment. The Veteran made clear that he started having chronic back pain in service and continued to have back pain when he was discharged from service. The Veteran’s wife similarly testified that she witnessed the Veteran experiencing back pain immediately following his separation from service and ever since. In light of the above, while the evidence is not unequivocal, it has nonetheless placed the record in relative equipoise. The Veteran has competently and credibly reported lower back pain during and since service, and his contentions are supported by the medical evidence of record. Service treatment records document complaints of lower back pain; and current VA and private treatment records document recurrent complaints of lower back pain and a current diagnosis of lumbar spine degenerative disc disease. Although the June 2012 VA examiner provided a negative opinion, the Board finds the June 2012 medical opinion to be inadequate for adjudication purposes. In this regard, the Board notes that the examiner failed to adequately consider the Veteran’s lay statements regarding the onset and continuity of his symptoms of back pain since service. As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for lower back pain is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for lumbar spine degenerative disc disease is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.