Citation Nr: 20005347 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 18-18 774 DATE: January 23, 2020 ORDER Service connection for a thoracolumbar spine condition is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his thoracolumbar spine condition is at least as likely as not related to an in-service injury. CONCLUSION OF LAW The criteria for service connection for a thoracolumbar spine condition 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 January 1985 to January 1991. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In a recent precedential decision, the Federal Circuit held that pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability under 38 U.S.C. § 1110 if it results in functional impairment of earning capacity. Notably, however, a current disability cannot be shown by subjective pain alone, but there must be some functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The evidence of record demonstrates that the Veteran has an in-service injury and a current disability. The Veteran is currently diagnosed with other intervertebral disc degeneration of the thoracolumbar spine, acute low back pain, and degenerative disc disease (DDD) of the thoracolumbar spine. The record also indicates that during his active service, the Veteran was treated for muscle strain in the left oblique region and muscle spasms in the lower mid back. Additionally, the Veteran’s separation report of medical examination notes low back pain with an examination within normal limits. The remaining determination for the Board is whether there is a causal relationship between the Veteran’s current bilateral hearing loss and his military service. In this regard, there are probative opinions that support and weigh against the claim. The evidence against the claim is a May 2014 VA medical opinion. The VA examiner opined that it was less likely than not that the Veteran’s thoracolumbar spine disability was related to his military service. As rationale for the opinion, the examiner noted that the Veteran’s in-service injury resolved with no residuals. The examiner also noted that the Veteran’s current symptoms were noted recently, several years after his separation from service. Although, the VA examiner indicates that the Veteran’s in-service injury resolved, the Veteran’s separation examination indicates that he experienced back pain approximately one year after his last in-service injury. Moreover, the Veteran has refuted the notion that the back pain resolved in subsequent statements. The evidence in support of the claim includes an April 2018 private medical opinion and lay statements from the Veteran. The private medical opinion indicates that it is most likely the Veteran has some element of involvement from his time in the Navy that has resulted in chronic changes of the spine with arthritis which is causing pain. As rationale for the opinion, the physician noted the Veteran’s age during active service, amount of weight lifted, and duration of military service. The physician also noted review of the Veteran’s service treatment records and the Veteran’s self-reported medical history that he has experienced pain for the past thirty years since leaving the Navy. The Board notes that “has some element of involvement” is not the strongest evidence of a causal relationship between the Veteran’s current thoracolumbar spine disability and his military service as it is unclear to what degree the Veteran’s military service contributed to his current disability. In his April 2018 substantive appeal (VA Form 9), the Veteran reported that he injured his back a few times during active service and these injuries never properly healed. The Veteran indicated that he now has arthritis in the same place where he injured his back during service. The Veteran further reported that since leaving the Navy, he has experienced back pain and approximately three to seven times per year resulting in an inability to bend or move, and he has had to take time off from work to recover from a flare up of back pain. The Veteran notes that he reported these experiences to the VA examiner, but they were not documented. The Veteran also noted that although he has had back pain and flare ups since service, he does not seek formal medical care every time because he does not like the effects of pain medications prescribed. The Veteran reported similar information during his April 2018 private treatment encounter, indicating that his in-service injury has caused him back pain since service and that more recently the pain has increased requiring at times rest, anti-inflammatories, and sick leave from work. The Board notes that the VA examination and the Veteran’s report of medical history differ significantly, with the examiner reporting no flare ups and a recent onset of back problems. The Veteran certainly possesses the competency to report what comes to him through his senses, one of which is reporting on his experiences of pain and the amount of time he has experienced such pain. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran’s reported history of back pain is considered credible and afforded great weight. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current thoracolumbar spine disability is related to his military service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. I. Sims, 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.