Citation Nr: 20060384 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 13-00 062 DATE: September 14, 2020 ORDER Entitlement to service connection for low back disability is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s low back disability began during active service and has been continuous to the present. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection low back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1969 until his honorable discharge in January 1972. He had service in the Republic of Vietnam (RVN) and Indochina, where his awards and decorations include the Vietnam Service Medal, Republic of Vietnam Campaign Medal, and Army Commendation Medal. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter involves an extensive procedural history that need not be detailed here. However, pertinent to this instant action, this matter was previously before the Board in August 2017, where the Board issued a denial of service connection for a low back disability. The Veteran timely appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC) contesting the Board’s August 2017 decision. In May 2019, the CAVC vacated the Board’s decision and remanded the appeal for compliance with the instructions in its memorandum decision. In January 2020, the Board remanded the low back disability, to include as secondary to service-connected cervical spine disability, to comply with the CAVC instructions, to include obtaining a new VA examination with medical opinion. A VA examination and medical opinion were obtained in April 2020. As such there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Under the relevant law and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d). For the showing of a chronic disease in service, there is required to be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establishing chronicity at the time. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). As arthritis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.3109(a). To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differed from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, 38 U.S.C. § 1154(a) requires VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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 (Fed. Cir. 2007). 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for low back disability is granted. The Veteran contends his current low back disability had its onset during military service, and he has continuously experienced relevant symptoms since that time. In the alternative, he contends his low back disability is secondary to his service-connected cervical spine disability. As an initial matter, the Board finds the evidence of record demonstrates the Veteran has been diagnosed with a low back disability, diagnosed as lumbar spine degenerative joint disease, lumbar spondylosis with intervertebral disc disorder with myelopathy lumbar region, degenerative arthritis of the spine with chronic low back pain, and degenerative disc disease of the lumbar spine. See, e.g., Kansas-City VA treatment records, July 2012 VA examination report, August 2015 VA examination report, and March 2017 VA examination report. The Veteran contends his low back disability is related to his time in active service. Specifically, he asserts while in the RVN, he was involved in an earthmover rollover accident and suffered an injury to his back. He also reports that he was involved in a motor vehicle accident in 1971. See May 2010 Statement in Support of Claim. The Veteran’s DD Form-214 shows his military occupational specialty (MOS) was Senior Carpenter and confirms his service in the RVN from July 1970 to April 1971. As the Veteran’s description of the above-referenced in-service injury is consistent with his circumstances of service, the Board finds there is competent, credible evidence of an in-service event or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Review of the Veteran’s service treatment records (STRs) confirm involvement in a motor vehicle accident in August 1971, as well as complaints of low back pain in June 1971. See STRs received January 1971. Next, the Board finds the evidence is in relative equipoise as to whether the Veteran had the onset of symptoms of low back disability in service and since service separation. The Board observes in March 1972, the Veteran underwent a VA medical examination and was diagnosed with residuals of cervical sprain; no lumbar spine disability was noted. However, the x-ray report from the examination contained a handwritten note stating, “att. radiologist: I am sorry to say I overlooked this patient lumbar spine.” See March 1972 VA examination report. The later VA examiner characterized this note as “some evidence that the Veteran did have a lumbar spine issue at the time. See July 2012 VA examination report. Less than a year later, in July 1973, the Veteran submitted a statement to VA reflecting that he was having “much trouble all the time” and that “the Burlington Northern Railroad doesn’t want him because of back trouble, which is costing him in the difference in pay.” See July 1973 Statement in Support of Claim. The Veteran was diagnosed with lumbar spine degenerative joint disease in January 2006,, and at a VA primary care visit later that year, he reported his low back problems began in service and got progressively worse over the years. Subsequent VA treatment records from 2009 and 2010 reflect complaints of chronic back pain. Regarding the Veteran’s assertions he has experienced low back disability symptoms in service and following service, the Board finds the Veteran competent and credible to report the onset of symptoms of that disability, specifically pain. Furthermore, the Board finds the Veteran is competent and credible to report the continuation of symptoms of that disability. See Charles v. Principi, 16 Vet. App. 370 (2002); see also Caluza, 7 Vet. App. 498. Turning to the medical opinions of record regarding the etiology of the Veteran’s low back disability, the Veteran underwent a VA examination in July 2012 and the examiner stated he could not determine if the Veteran’s current lumbar spine condition was related to the low back pain he experienced in service without resorting to speculation. The examiner noted a March 1972 x-ray report, barely two months after separation, that the radiologist overlooked the Veteran’s lumbar spine issues, determining there was thus some evidence of an in-service injury. However, the examiner noted records pertaining to the earthmover rolling over him in the RVN could not be located. In April 2015, the Board remanded the Veteran’s claim because the 2012 examiner’s determination of an inability to provide a non-speculative opinion was based on the lack of objective evidence. Because this cannot be an adequate basis for an examiner’s inability to provide an opinion regarding etiology, the Board ordered a new examination, which occurred in August 2015. The August 2015 examiner opined he could not make a connection to the current back complaints from the reported injury while in the military service. He reasoned that although the Veteran claimed injury while in the service, he had no ongoing treatment or care for his back injury from July 1971 to 2005, during which time he was employed. The Board again remanded the Veteran’s claim in January 2017, noting he had low back pain during service and determining the August 2015 examination was inadequate. As with the June 2012 opinion, the 2015 opinion did not reflect consideration of the Veteran’s reports he has suffered from continuous back symptomatology since his military service. The Board found it “significant” the Veteran complained of back trouble less than two years after his discharge. Thus, the Board ordered an addendum opinion regarding the nature and etiology of the Veteran’s low back disorder. Pursuant to that remand order, another VA spine examination was conducted in March 2017. The examiner noted the Veteran’s reports of chronic low back pain, which began in Vietnam and had gotten worse over the years. The examiner opined, the Veteran’s current low back disability was less likely than not incurred in or caused by service, providing the following rationale: The Veteran does report the injury while in Vietnam but went for over twenty-five years without treatment or evaluation while working for the Railroad. I cannot establish a nexus of care. While this Veteran claims injury to his spine while in the military, I feel the following should be considered: he worked thirty years post military service for the Railroad doing hard manual labor and during this time he did not seek care from the military for an ongoing back problem. There is no nexus of care or complaints for his back. In April 2017, the Veteran submitted a statement to VA explaining why he had not sought VA treatment for his low back condition despite continuing problems since service. Specifically, he indicated that he “dropped out of the VA” after the RO reduced his disability evaluation for his service-connected cervical spine disability in August 1973 because he “didn’t need to be abused by any more VA doctors.” See April 2017 Correspondence. Accordingly, pursuant to the Board’s most recent January 2020 remand, a VA examination was performed in April 2020. The examiner found the Veteran’s condition unrelated to service because the STRs are negative for either an acute or chronic back/thoracic spine condition/diagnosis. The examiner stated post separation available medical records demonstrate the Veteran’s active participation in physically demanding occupations after active service separation, for example working as a carpenter, construction worker, and railroad worker. The examiner concluded, this is clear and compelling evidence that the Veteran was without any chronic, disabling functional deficits, impairments, and/or limitations associated with active service. The Board has the responsibility of determining the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Although the April 2020 examiner found the Veteran’s low back disability unrelated to service, the Board finds the opinion to be of diminished probative value. The examiner failed to consider the competent and credible evidence of the Veteran’s report of the onset of his low back disability symptoms in service, and the continuation of those symptoms in the years since. In addition, the examiner did not provide the requested opinion as to whether the Veteran’s low back disability was secondary to, or aggravated by, the Veteran’s service-connected cervical spine disability. Given the lack of an adequate medical opinion, there is no evidence in the record contrary to the Veteran’s statements that injured his low back in service and continued to experience low back disability symptoms until his diagnosis. Turning to the question of whether there is a nexus, or link between the current diagnosed disability and service, the evidence is at least in equipoise as to whether the Veteran’s low back disability had its onset in service. Although there is no medical nexus opinion of record linking the Veteran’s current diagnosis of low back disability to his active service, the lack thereof is not dispositive. The Board has considered whether the Veteran has presented a continuity of symptomatology associated with his low back disability and finds that he has done so. While there is no evidence in the record that he sought medical treatment for low back disability for almost thirty years after service separation, this fact alone is not determinative of the outcome of the case. The Veteran’s statements regarding his in-service injury and resulting low back disability symptoms since service separation are competent evidence as to factual matters of which he has first-hand knowledge and the present of observable symptoms; they are given great probative weight. Layno, 6 Vet. App. at 469-70. A lay person is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes through their senses. Id. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. The Board notes symptoms of low back disability are capable of lay observation. The Veteran has been consistent in his description of the details regarding the onset and symptomatology of his low back disability. The Veteran has continuously asserted he has experienced low back disability symptoms since military service including chronic pain. The evidence reflects the Veteran experienced low back disability symptoms in service and there have been continuous symptoms since service separation. The Veteran has been diagnosed as having low back disability. When weighing the evidence of record, the Board finds at most the evidence for and against the Veteran’s claim is in relative equipoise. Resolving doubt in the Veteran’s favor, the Board concludes competent medical evidence diagnosing the Veteran with low back disability, as well as the competent and credible lay statements regarding in-service and post-service symptoms, all support a finding the Veteran’s low back disability began in service and has persisted since that time. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and “the Nation, ‘in recognition of our debt to our Veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits”). Therefore, service connection for the Veteran’s low back disability is warranted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.