Citation Nr: 20050751 Decision Date: 07/30/20 Archive Date: 07/30/20 DOCKET NO. 18-22 571 DATE: July 30, 2020 ORDER Service connection for back condition, diagnosed as degenerative disc disease and herniated disc with spinal fusion, is granted. FINDING OF FACT The Veteran’s back condition had its onset in service. CONCLUSION OF LAW The criteria for service connection for back condition have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from November 1985 to November 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a hearing held before the undersigned Veterans Law Judge. Back condition The Veteran seeks service connection for his back condition. In support, he reports that he injured his back due to his duties in service and has continued to have pain thereafter. See BVA hearing transcript (March 2020). In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Further, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. See Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran was diagnosed with degenerative disc disease and herniated disc with spinal fusion. Thus, the Veteran has a current condition in his back, thus establishing the first element for service connection. Additionally, he continued his medical treatment for his back at VA and Non-VA facilities with physical therapy, medications and surgery. See VA medical treatment records (August 2013 and 2017) and Non-VA medical record (October 1994, February 1997 and October 2011). The Board acknowledges that on the February 2018 statement of the case (SOC) the RO stated that it was less likely than not that the Veteran’s current back condition is related to service. See SOC (February 2018). However, the Veteran, spouse, physician and buddy provided statements explaining the in-service training that caused his back problems and treatments thereafter. See BVA hearing transcripts (March 2020), spouse and buddy statement, J.B., (May 2018 and January 2019), and see also Non-VA medical treatment records, Doctor C. K. statement (December 2011). The Board finds that the medical and lay evidence linking the Veteran’s back condition to service is probative, competent and credible. Additionally, the Veteran has various outpatient treatment records of his back disability and treatment. Further, the Board also finds that the competent and credible Veteran’s sworn testimony, wife’s and buddy statements show that his back problems began during service and have been recurrent since that time. See BVA hearing transcripts (April 2020), and see also spouse and buddy statement, J.B., (May 2018 and January 2019). The Veteran and his spouse are competent to report his back symptoms that began in service and the Board finds the Veteran’s statements credible. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the lay evidence is consistent with other evidence of record, both medical and lay, and further finds that it is competent and credible. The Board finds that the medical and lay evidence, including the Veteran’s, spouse and buddy statements, shows that the Veteran’s back disability had its onset in service and have been recurrent since that time. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s back disability had its onset during his period of military service. As such, service connection is granted. See 38 C.F.R. § 3.303 (a). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- 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.