Citation Nr: 20034540 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 15-33 896 DATE: May 18, 2020 ORDER Entitlement to service connection for a low back condition is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his current low back condition had its onset during service. CONCLUSION OF LAW The criteria for service connection for a low back condition have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training from August 1984 to November 1984, and active duty from November 1990 to May 1991, and May 2004 to November 2005. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board issued a prior remand on this claim in March 2019. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event. However, if the weight of the evidence is against the appellant’s claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a back condition The Veteran has a current diagnosis of lumbar spondylosis. Thus, a current disability has been established. Service treatment records show that the Veteran complained of lower back pain in October 2005 on a post-deployment assessment. Therefore, an in-service event has also been established. The Board notes that a VA examiner opined in September 2013 that the Veteran’s back condition was less likely than not incurred in or caused by a complaint of back pain during his Iraq deployment. However, in March 2019, the Board remanded this claim for another medical opinion, specifically so the examiner could address the Veteran’s contentions that his current back condition was due to his performance of duties in a tank and due to sleeping on a portable cot. The Board also asked the examiner to provide opinions with regard to whether the Veteran’s current disability was at least as likely as not related to his January 2006 x-ray findings of minimal spurring or had its onset during any of the Veteran’s periods of service. In October 2019, several addendum opinions were added to the Veteran’s electronic file. First, the examiner opined that the Veteran’s current back condition was less likely than not incurred in or caused by the claimed in-service injury or event. As rationale, the examiner wrote “He [the Veteran] served on active duty for training from August 1984 to November 1984, and active duty from November 1990 to May 1991, and May 2004 to November 2005. The VA medical records show that he suffers from generalized arthritis. It is reasonable that during the time he was deployed and sleeping on an uncomfortable mattress that he would have temporary back pain during that time. Medical records show that his back was pain-free afterwards though (see 11/16/05 Medical Examination Report for Commercial Driver Fitness Determination form). Similarly, VA medical records show years of no medical treatment for back pain after his release from active duty. Given the history of generalized arthritis that is medically expected to progress without significant injury or trauma, as noted in his medical records, I find no objective evidence on review of his [the Veteran’s] VBMS-file supporting the premise that his current back disability, including spondylosis is at least as likely as not incurred in and/or caused by the Veteran’s performance of his duties in a tank jarring around in a tank and jumping off the tank and due to sleeping on a portable cot.” With regard to whether the Veteran’s current back condition was at least as likely as not related to his January 2006 x-ray findings, the examiner also opined that this was less likely than not the case. For his rationale, the examiner provided “He [the Veteran] served on active duty for training from August 1984 to November 1984, and active duty from November 1990 to May 1991, and May 2004 to November 2005. The VA medical records show that he suffers from generalized arthritis. In-service x-rays of his left shoulder in 2004 noted degenerative changes. It is reasonable that during the time he was deployed and sleeping on an uncomfortable mattress that he would have temporary back pain during that time. Medical records show that his back was pain-free afterwards though (see 11/16/05 Medical Examination Report for Commercial Driver Fitness Determination form). Similarly, VA medical records show years of no medical treatment for back pain after his release from active duty. Given the history of generalized arthritis that is medically expected to progress without significant injury or trauma, as is noted in his 2006 and 2013 x-ray finings, I find no objective evidence on review of his [the Veteran’s] VBMS-file supporting the premise that his current back disability, including spondylosis is at least as likely as not incurred in and/or caused by the January 2006 x-ray findings.” Finally, with regard to whether the Veteran’s January 2006 x-ray findings had their onset during his periods of active duty service, the examiner opined that this also was less likely than not the case. Specifically, the examiner opined “I would have to resort to mere speculation to opine on the exact onset of the degenerative findings on the Veteran’s January 2006 x-ray report. I know from over 25-years of clinical experience, no less than 20% of which was treating and evaluating low back conditions, that the vast majority of asymptomatic patients aged 40 and above will have degenerative findings on spine x-rays. Mild changes are frequently seen in asymptomatic patients in their early 30’s. It is of note that a chest x-ray taken when he [the Veteran] was in his mid-30’s reported that his skeleton was ‘normal for age.’ Otherwise, there is no definitive evidence noted on review of the Veteran’s VBMS-file supporting that his January 2006 x-ray findings had their onset during his periods of service from November 1990 to May 1991 or May 2004 to November 2005.” The Board notes that in the March 2019 remand another opinion was requested if the examiner believed that the Veteran’s January 2006 x-ray findings pre-existed either of the Veteran’s active duty periods of service. If the examiner believed so, he was instructed to opine as to whether it was clear and unmistakable that the back findings pre-existed the Veteran’s service, and whether it was clear and unmistakable that the back findings were not aggravated by service. While as noted above the examiner opined that he would have to “resort to mere speculation to opine on the exact onset of the Veteran’s degenerative findings”, he did still opine that there was no objective evidence that the Veteran’s “current back disability is representative of an aggravation of his pre-existing back condition beyond its expected natural progression.” While this opinion also supports a denial of service connection for a back condition, the Board finds that it is unpersuasive as the examiner did not first find that the Veteran’s January 2006 x-ray findings clearly and unmistakably pre-existed his service. In fact, the examiner found the opposite – that such a finding would require mere speculation. The Board has considered the lay evidence and all of the medical opinions. In light of the Veteran’s in-service October 2005 complaint of low back pain, and the post-service January 2006 x-ray findings that the 2019 VA examiner confirmed were representative of “degenerative findings,” and the Veteran’s continued diagnosis of a degenerative process of the lumbar spine (i.e., spondylosis), the Board resolves reasonable doubt in favor of the Veteran, and finds that his current low back condition had its onset during his period of service from May 2004 to November 2005. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.