Citation Nr: 20031480 Decision Date: 05/05/20 Archive Date: 05/05/20 DOCKET NO. 14-24 839A DATE: May 5, 2020 ORDER Entitlement to service connection for lumbosacral strain, claimed as low back strain, is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s current lumbosacral strain is related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for lumbosacral strain, claimed as low back strain, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1993 to January 1997 and from July 2003 to June 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2016 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal was most recently the subject of a November 2019 Board remand. The requested development has been completed, and the case has returned to the Board. Entitlement to service connection for lumbosacral strain Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As detailed below, service connection for low back strain is warranted. The Board notes that the Veteran also asserts secondary service connection. See July 2016 claim. Since the evidence substantiates a service connection grant on a direct basis, further consideration of secondary service connection is moot. Service treatment records (STRs) from September 1993 showed that the Veteran had developed back pain over the past week. She described sharp back pain when she woke up in the morning. The clinician noted slight tenderness of the lower back and assessed low back strain, grade 2. January 1996 STRs noted treatment for back ache. May 2004 STRs included a separation examination. The Veteran’s spine was clinically examined and deemed to be normal. In an accompanying medical history report, the Veteran denied recurrent back pain. In July 2015, the Veteran had a VA spine examination. The examiner declined to issue a diagnosis. The Veteran reported that she had longstanding back pain that she previously attributed to her period. She reported that it worsened during her period. Clinical examination showed a full lumbar spine motion without pain. Spine X-ray report did not show arthritis. In July 2016, the Veteran reported being treated during and after service for back pain. The treatment included pain medication and physical therapy. In April 2018, the Veteran had another VA spine examination. The examiner diagnosed lumbosacral strain. The examiner reported that symptoms started in the mid-1990s. At that time, the Veteran started experiencing recurring back pain with repetitive Army training exercises. She denied any acute trauma. Through the years, the back pain recurred with age, deconditioning and weight gain as factors. Currently, the Veteran reported back pain with repetitive bending and lifting activities. Clinical examination showed a full lumbar spine motion with pain. In July 2018, the Veteran stated that she was initially diagnosed with lumbar strain during military service and continued to have the condition. September 2018 VA treatment records noted that the Veteran sought private medical treatment for back pain. In April 2019, the Veteran stated that she was diagnosed with lumbar back strain during military service. She recalled seeking treatment in 1997, 1999, 2001 and 2005. However, she was unable to obtain these medical records since the treating medical facility had closed. She indicated that she self-treated her back pain for many years. She most recently sought medical attention in 2017 and was instructed to take pain medication and complete physical therapy exercises. In April 2019, a VA medical opinion was issued. The examiner furnished a negative medical opinion. He stated that there was no data to support a chronic lower back condition related to active service. Although there was a 1993 note for acute back pain, there was no evidence of a recurrent back condition associated with a military injury from the 1990s. In April 2019, the Veteran stated that she had low back strain diagnosed in service and continued to experience low back pain. She explained that during military service she worked in medical logistics. She frequently had to lift heavy boxes and supplies during service. The record shows an in-service event and current disability for lumbar strain. The remaining issue is a nexus. The Board must weigh the probative value of the conflicting nexus evidence. Owens v. Brown, 7 Vet. App. 429, 433 (1995) (noting that the Board has the responsibility to assess the credibility and weight to be given to evidence). In support of a nexus, the Veteran asserts that she has had continuous symptoms since military service. She is competent to report about her history of low back pain. Jandreau, 492 F.3d at 1377, n. 4. STRs from September 1993 and January 1996 support her assertion that she had back pain in service. Although the May 2004 Report of Medical History showed that the Veteran denied recurrent back pain, it is isolated. She clarifies in her July 2016, April 2019 and April 2020 reports that she continued to experience back pain following service. Accordingly, the Board finds that the Veteran’s assertions of continuous symptoms beginning in service are probative to show a nexus. Owens, 7 Vet. App. at 433. The Board must also consider the April 2019 VA medical opinion. The Board finds that the rationale for this medical opinion is inadequate. It appears the examiner implicitly discounted the Veteran’s reports about back pain starting in service due to an absence of contemporaneous medical treatment. Notably, the Veteran provided reports that she did indeed seek medical attention for back pain after service but that these medical records were no longer available. The VA examiner cannot reject the Veteran’s reports about continuing symptoms solely due to an absence of contemporaneous medical treatment. Then, the examiner did not specifically consider the Veteran’s April 2019 written reports about medical treatment for back pain from 1997 to 2005. Accordingly, the Board considers the April 2019 VA medical opinion to be of limited probative value. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Smith v. Wilkie, No. 18-1189, at 9-10 (Vet. App. Apr. 27, 2020). In sum, the evidence is thus at least evenly balanced as to whether the Veteran's lumbosacral strain had its onset in service. As reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for lumbosacral strain, claimed as low back strain, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.