Citation Nr: 20036428 Decision Date: 05/27/20 Archive Date: 05/27/20 DOCKET NO. 16-47 523 DATE: May 27, 2020 ORDER Entitlement to service connection for a low back condition (claimed as lower back pain) is granted. REMANDED Entitlement to service connection for an upper back condition (claimed as upper back pain) is remanded. FINDING OF FACT The Veteran’s current low back condition is as likely as not the result of an injury he sustained during his service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for a low back condition. 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 honorably in the Navy from April 1962 to June 1966. In November 2019, in support of this claim for upper and lower back pain, the Veteran testified during a hearing at the local regional office (RO) before the undersigned Veterans Law Judge of the Board (Travel Board (TB) hearing). A transcript of the hearing is of record. This appeal has been advanced on the Board’s docket (AOD’d) pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for a low back condition is granted. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 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 an injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran contends that his low back condition (including especially his spondylosis and herniated disc) is attributable to his Naval service. Specifically, he testified under oath during his hearing before this Board that he had injured his back during his service, in January 1966, when he was assisting a shipmate in carrying a portable pump aboard the USS Pyro. His service treatment records (STRs) confirm that accident and show he consequently had musculoskeletal pain. It appears, however, that at the time the corpsman who treated him mistakenly diagnosed the injury as a heart condition because he also was having difficulty breathing. He later had another accident in June 1966 and his STRs concerning that additional trauma note he had been experiencing musculoskeletal issues since the accident in January 1966. While the STRs do not specifically note the Veteran’s low back condition, the Board finds that he has credibly testified to experiencing back pain following that January 1966 injury and continuing to June 1966, when his service ended. In addition, more recent November 2019 private medical treatment records show the Veteran has a current diagnosis of a low back condition that includes degenerative changes of the lower lumbar levels and central disc herniation, as well as moderate spondylosis. Resolution of this appeal, therefore, turns instead on whether there is the required attribution (“nexus”) between these current diagnoses and the injury and consequent low back pain the Veteran experienced during his service, as documented in his STRs. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Board finds there is indeed probative (meaning competent and credible) evidence establishing this required correlation, particularly when resolving all reasonable doubt concerning this in the Veteran’s favor. On this determinative issue of causation there is a probative medical nexus opinion favoring the claim. The Board sees the Veteran’s claim initially was denied for lack of evidence of a relevant injury in service and, as a result, he was not provided a VA examination for a medical nexus opinion. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). But, in response, he has both testified credibly before the Board as to his in-service injuries and has submitted a private medical nexus opinion indicating those injuries he sustained during his service that are documented in his STRs are related to his current low back condition.   Of particular note, this supporting private medical nexus opinion indicates the examiner reviewed the Veteran’s entire medical history, including his STRs and subsequent civilian treatment records. In his rationale, this commenting private examiner specifically notes the Veteran has not had any intervening (“intercurrent”) injuries in the years since his service that could account for his low back condition. Consequently, this private examiner concluded the Veteran’s current low back condition is the result of his injury in service. Given this supporting private medical nexus opinion, the Board finds the evidence to at least be in equipoise, if not more favorable to the claim, concerning whether the Veteran’s current low back condition is the result of the injuries he sustained during his Naval service. Accordingly, after resolving all reasonable doubt in his favor, the Board finds that service connection for a low back condition is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for an upper back condition (to include upper back pain) is remanded. In addition to his low back condition (claimed as lower back pain), the Veteran also has indicated he has upper back pain that he believes also is related to his Naval service. Currently, however, there is no evidence of a nexus (relationship) between his reported upper back pain and his service. Because the private medical opinion submitted in March 2020 specifically addresses his low back condition, but not an upper back condition, the Board finds an examination is warranted to ascertain whether the Veteran’s upper back condition (specifically, his reported upper back pain) is also related to his service.   A specific diagnosis is not necessarily required for service connection, provided the Veteran’s reported pain results in a functional limitation and consequent impairment in earning capacity. In Sanders v. Wilkie, 886 F.3d 1356, 1363-68 (Fed. Cir. 2018), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) addressed whether pain, alone, without an accompanying diagnosis of a present disease, can qualify as a current disability for purposes of service connection. The Federal Circuit Court answered this question in the affirmative, holding not only that pain alone may constitute a disability but also that, under 38 U.S.C. § 1110, the Board is precluded from finding a current disability does not exist based solely on the absence of a diagnosis. Because the Veteran has reported an upper back disability manifested by pain, and the Board has found his report of a back injury (potentially affecting both his lower and upper back) during service to be credible, an examination is warranted to ascertain whether there is a nexus between his upper back pain and his service. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any upper back condition. The examiner is specifically asked to opine on whether it is at least as likely as not the Veteran has a diagnosis referable to his upper back to account for his complaints of upper back pain. If he does, the examiner is asked to specify this diagnosis. But, regardless, an opinion is needed concerning whether any current upper back condition – including manifested by upper back pain, is related to an in-service injury, event, or disease, including especially to the Veteran’s report of back pain after lifting a pump aboard the USS pyro and the musculoskeletal pain subsequently noted in his STRs.   If the examiner opines that the Veteran’s upper back pain is not directly related to his service, the examiner must also provide an opinion on whether the upper back pain is at least as likely as not caused OR aggravated by a service-connected disability, including especially the now service-connected low back condition. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.