Citation Nr: 20028082 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 18-49 966 DATE: April 22, 2020 ORDER Service connection for a back condition is granted. FINDING OF FACT The preponderance of the evidence is in equipoise as to whether the Veteran’s back condition was caused by or is otherwise attributable to service. CONCLUSION OF LAW The criteria for service connection for a back condition have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March to August of 1987. These matters are before the Board of Veterans’ Appeals (Board) on appeal of the March 2016 and September 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. In October 2015, the Veteran applied for service connection for a back condition. In March 2016, the RO issued a rating decision denying his claim. In July 2016, the Veteran requested a reconsideration of the RO’s March 2016 rating decision. In September 2016, the RO issued a rating decision continuing denial of service connection for the Veteran’s back condition. In February 2017, he filed a Notice of Disagreement. In August 2018, the RO issued a Statement of the Case. In October 2018, the Veteran filed a Substantive Appeal. Underlying the RO’s denial of the Veteran’s claim is an August 2016 report by a VA examiner who declined to diagnose the Veteran with “any” thoracolumbar spine condition. However, simultaneously, the August 2016 VA examiner endorsed the diagnosis rendered in 2006 by the Veteran’s treating medical practitioner, who diagnosed the Veteran with arthritis of the thoracolumbar spine, mild compression fractures at margins of the superior end plates of L3 and L4, osteophytes, and a bulging degenerated disc at L4-5. The Board notes, in passing, that the Veteran’s medical treatment records from 2006 to December 2008 are incomplete because his treating medical practitioner who provided the Veteran’s care from 2006 to December 2008 had his license to practice medicine revoked. Therefore, the medical findings rendered during the period from 2006 to December 2008 could be gleaned only from selective records retained by the medical practitioner who took over the Veteran’s case in December 2008, and from the notes generated by the December 2008 medical practitioner upon review of the Veteran’s 2006-to-December-2008 records. Turning back to the August 2016 VA examiner’s report, the Board observes that, inconsistent with his own diagnosis of no back condition of any kind but consistent with the diagnosis rendered by the Veteran’s 2006 treating medical practitioner, the August 2016 VA examiner also found that the Veteran’s area of L4-5 was tender to palpation. Further, while the August 2016 VA examiner found that the Veteran’s back “pain noted on exam[ination did] not result in [or] cause [the Veteran any] functional loss,” the examiner also found that the Veteran’s range of motion was “abnormal or outside of [the] normal range.” Moreover, the VA examiner also observed that the Veteran’s “thoracolumbar spine . . . condition impact[ed] his . . . ability to work,” and recorded that the Veteran was receiving disability benefits from the Social Security Administration (SSA). The Board notes, in passing, that the Veteran’s SSA records have not been associated with the claims file in violation of the holding of Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). However, the Board finds that this oversight cannot negatively impact the Veteran’s claim, since his claim is being granted. Turning back to the August 2016 VA examiner’s report, the Board observes that the VA examiner acknowledged that the Veteran’s service treatment records (STRs) demonstrated that the Veteran complained of low-back pain in July 1987, and that he was prescribed an over-the-counter nonsteroidal anti inflammatory medication, and seen the next day for a follow-up appointment. The August 2016 VA examiner further acknowledged that the record of the Veteran’s physical examination conducted in connection with his separation from service was unavailable, thus preventing a determination as to whether the Veteran was diagnosed with or reported any back condition at discharge. However, based on the fact that the Veteran’s STRs contained only a single complaint about back pain, and the Veteran’s post service medical treatment records did not reflect his complaints, treatment, or diagnosis of a back condition until 2006, the August 2016 VA examiner found that it was less likely than not that the Veteran’s back condition was caused by service. Notably, the August 2016 VA examiner recorded the Veteran’s report that he had been experiencing back pain since his July 1987 incident, to include throughout his entire post-service period, but did not factor the Veteran’s report into the examiner’s finding. Moreover, the August 2016 VA examiner did not clarify why he found it significant that the Veteran’s STRs did not reflect the Veteran’s further complaints about his back condition after his initial July 1987 complaint, given that the initial complaint and his follow-up visit occurred just two weeks prior to the Veteran’s separation from service. Indeed, given that the Veteran’s in service-even occurred right prior to his discharge, and the report of his physical examination at separation is unavailable, no evidence in the record suggests that the Veteran’s back pain cleared without residuals by the time of his discharge. Moreover, in an effort to provide a rationale for his opinion, the August 2016 VA examiner stated that the Veteran’s record of employment for “20 years as a bricklayer could certainly lead to the finding” that his back pain was attributable to his post-service employment. However, the August 2016 VA examiner did not clarify how he had arrived at the conclusion that the Veteran was employed as a bricklayer for 20 years, given that the Veteran’s medical records show that he left civilian employment 10 years prior to his 2006 medical treatment, i.e., nine years after his separation from service, and nothing in the record supports the conclusion that the Veteran was employed “as a bricklayer” for 11 years prior to service, given that he enlisted for active duty at the age of 21. Further, the record demonstrates that, upon failing to appreciate the distinction between a bricklayer, i.e., a specialist who lays bricks to construct brickwork, and a stonemason, i.e., a specialist who cuts and shapes stones and stonework, the August 2016 VA examiner misconstrued the Veteran’s medical records reflecting his reports of being employed as a stonemason as indicative of the fact that the Veteran performed a bricklayer’s tasks during his employment. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence of a current disability, an in service event, and a causal relationship between the in-service event and the claimed current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Disabilities diagnosed after discharge may still be service connected if evidence establishes the disability was incurred in service. See 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Board gives the veteran the benefit of the doubt on any issue material to his/her claim when evidence is in equipoise, but determines the competence and credibility of the evidence, and weighs the competence and probative value of the evidence, including lay statements, against the entirety of the record. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed by a lay person, to include observable symptoms. 38 C.F.R. § 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, a lay witness is competent to opine on questions of diagnosis and etiology, provided that such matters are amenable to a lay person’s observation. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In contrast, to provide an adequate medical opinion, a medical expert must take into account all the relevant evidence of record, to include the veteran’s lay statements. See Nieves-Rodriguez v. Nicholson, 22 Vet. App. 295 (2008). Further, to render a probative opinion, a medical expert must rely on accurate data. See Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005). If an expert medical opinion is premised on a factual history that is not true or accurate, the expert’s opinion is of no value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Here, the August 2016 VA examiner’s opinion contains inconsistent findings. Moreover, it is based on inaccurate data and fails to factor in the Veteran’s report of the history of his disability. Accordingly, the Board allocates no probative value to the August 2016 VA examiner’s opinion. Further, the Board acknowledges that the probative evidence of record is not in dispute as to the Veteran’s current disability in the form of a back condition, as well as to his underlying July 1987 in service event. Accordingly, the Board’s analysis in this matter is limited solely to the nexus element of the Veteran’s claim. The Board finds that the Veteran is competent to report the onset of his back condition and his continuous back pain since service, to include throughout the period on appeal, given that the Veteran’s back pain is a symptom amenable to observations by a layperson. Further, the Board finds the Veteran’s reports of his back pain and the time period during which the Veteran suffered from back pain credible. Moreover, the Veteran’s November 2007 medical treatment records reflect his report to his treating medical practitioner that his back condition manifested by “back problems” for a period for a period “greater than 15 years,” even though the Veteran had no post-service incident, injuries, or accidents affecting his back. The Board finds the Veteran’s report to his November 2007 treating medical practitioner highly credible, given that the report was made for treatment purposes a decade before the Veteran applied for service connection for his back condition. Walker v. Shinseki, No. 12-2367, 2013 U.S. App. Vet. Claims LEXIS 1373 (Aug. 19, 2013) (a claimant’s statements made for treatment purposes are more credible than the claimant’s statement made for compensation purposes). Further, in January 2017, the Veteran reported to his treating medical practitioner that he had been suffering from pain from a back injury for over 20 years, and the January 2017 treating medical practitioner opined that the Veteran’s bulging disc was causally related to the triggering event that had occurred over 20 years prior. Because the Veteran’s medical treatment records reflect no triggering event other than the low-back pain the Veteran experienced prior to his discharge, and the time line of that event is consistent with conclusions of the January 2017 treating medical practitioner, the Board finds that the Veteran has established to the equipoise standard that his back condition is attributable to service. Therefore, under the doctrine of the benefit of the doubt, the Board finds that the Veteran has established the nexus element of his claim. Accordingly, the Veteran’s claim for service connection for his back condition is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anna Kapellan 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.