Citation Nr: 20006746 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 19-12 661 DATE: January 27, 2020 ORDER Entitlement to low back disability, to include as secondary to service-connected bilateral knee disabilities, is granted. FINDING OF FACT The Veteran’s low back disability is related to his service. CONCLUSION OF LAW The criteria for a low back disability on a direct basis have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1989 to October 1993. This appeal comes before the Board of Veteran’s Appeals (Board) from a March 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In September 2019, the Board remanded the appeal to obtain an addendum opinion that addresses the aggravation element of a secondary service connection claim. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Entitlement to low back disability, to include as secondary to service-connected bilateral knee disabilities. The Veteran contends that his low back disability is due to his service; or in the alternative, secondary to his service-connected bilateral knee disabilities. April 1990 service treatment record (STR) shows that the Veteran was treated in the ER with complaints of low back pain due to heavy lifting. The Veteran reported chronic back problems following service, including his back giving out while playing basketball, leading up to a work injury in 1998. He stated that after completing a brake job on a concrete truck, he stood up and his back went out. He states that although he settled with workers’ compensation (WC) and WC covered a 2001 surgical fusion at L4-L5, there was suspicion that it originated with an in-service injury. On multiple occasions, the Board has sought a VA medical opinion, to include on the issue of aggravation but each was found to be inadequate. Most recently, in October 2019, a VA examiner in an addendum medical opinion stated that the Veteran’s low-back disability is less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected condition. The examiner reasoned that the Veteran’s October 1998 back injury was the cause of the Veteran’s back problems. Worker’s Compensation visit in August 1999 indicates history of back injury in August 1998 and was noted to have prolonged symptoms of back pain unresponsive to conservative therapy. The examiner stated that there is no evidence of back problems prior to the WC injury. Therefore, the examiner reasoned, the back condition is not secondary to the service-connected bilateral knee disabilities including as secondary to the right knee strain with arthralgia. As to the aggravation element, the examiner was unable to establish a baseline of severity but opined that regardless of an established baseline, the Veteran’s low back disability was less likely than not aggravated beyond its natural progression by his service-connected knee disabilities. The examiner stated that there is not sufficient evidence to indicate that the Veteran’s lumbar spine condition is worse beyond natural progression given his history of lumbar fusion in 2001. The examiner remarked that upon his separation from service in October 1993, the Veteran indicated “no” to recurrent back pain. The examiner stated that the Veteran’s his medical history is negative for back problems, but his current MRI showed herniated disc at L4-L5. The Board finds the October 2019 addendum VA opinion to again be inadequate as it cites to an inaccurate medical history. The Veteran’s STRs note complaints of, and treatment for, low back pain and muscle strain due to heavy lifting while in-service. No rationale provided other than the reference to the possible intercurrent cause of the Veteran’s current low back pain. Importantly, the examiner considered the Veteran’s in-service medical record as needed to determine the etiology of his low back condition. As this opinion is incorrectly discusses the Veteran’s medical history by ignoring in-service complaints and treatment, it cannot be relied upon and holds little probative value. The Board finds that remanding again is not warranted. The Board grants service connection on re-consideration of a prior June 2019 private opinion of record. This opinion supports a finding that the current back disability is related to an original in-service injury. Although this opinion also addresses secondary service connection, direct service connection is the greater benefit. On this basis, the Board grants service connection. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Wilson, 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.