Citation Nr: 21001074 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-16 781 DATE: January 7, 2021 ORDERED Entitlement to service connection for a back disability is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his back disability is attributable to service. CONCLUSION OF LAW The criteria for service connection for a back disability 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 in the United States Navy from October 1980 to June 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Entitlement to service connection for a back disability. The Veteran contends that his back disability is related to service. He testified that he sustained multiple injuries while working on the flight deck and part of a nuclear weapons loading team in service. Specifically, he stated that he slipped and fell while loading heavy equipment off of a fusel lodge off an aircraft and has suffered pain since that time. He also described falling off of a top bunk during boot camp and experiencing pain, throbbing, and a burning sensation since then. He has continued to undergo physical therapy and undergone two back surgeries since service. See October 2020 Hearing Transcript. The Veteran and his representative further contend that January 1981 to November 1982 service treatment records service treatment records (STRs) document the initial lower back condition and a September 2009 private treatment report establishes a relationship between his current back condition and service. See April 2013 notice of disagreement. May 1982 service treatment record noted that the Veteran received emergency care for lower back pain. He denied any previous history of injury to the back muscle. No neurological defects were present. There was no point tenderness to lower back and there was no edema or discoloration present. Indeed, the Veteran has been shown to have a current back disability. See June 2018 Private Treatment Record. Additionally, there is evidence of treatment for lower back pain during service. Thus, the question before the Board is whether his current back condition is related to his service. In September 2009, the Veteran sought private treatment, wherein he indicated to the private provider that he injured his back when he slipped and fell off the wing of an airplane during service. The private examiner opined that the Veteran’s lower back pain was probably related to his initial injury when he was serving in the Navy. February 2012 private treatment records show that the Veteran presented with low back pain. He had pain and burning dysesthetic sensation across the buttock and sometimes pain going down into the area of the left leg described as burning. It was noted that his symptoms presented since he was in the Navy. The examiner stated that the Veteran’s current condition is most likely correlated to that which was present during his naval service. The examiner stated that service records show complaints of right lower back pain. He also had symptoms of problems in the leg. The examiner opined that it is probable that the Veteran developed problems while in the Navy. August 2012 VA examination noted a 1991 diagnosis of herniated disc. The Veteran reported that he had his initial back injury when he fell from the wing of an airplane (while fixing some electronic equipment). He described lower back pain with burning sensation that radiated down his leg. In addition to radicular pain, reduced ranges of motion were also noted. The examiner opined that this condition was less likely than not due to the Veteran’s military service because although there is evidence that he had several episodes of lumbar sprain or a bursitis syndrome, there is no evidence of a direct injury to the back or a fall. The examiner also stated that since there is no further medical evidence or treatment of a back pain between 1982 to 1991, the examiner could not state that a back sprain in 1982 would be the cause of a herniated disc in 1991. During an August 2016 VA examination, the examiner stated that the STRs include a letter from the Veteran’s medical doctor at the time indicating the Veteran suffered from spine sprain in February 1975. The examiner stated that the Veteran’s January 1980 entrance exam reports no recurrent back pain and spine exam was normal. Additionally, the examiner stated that there is documentation of back pain diagnosed as left side paravertebral myospasm twice in May 1982, as well as an entry with an illegible date that appears to be in May but clearly in 1982. The examiner reasoned that these all appear to represent the same acute episode of back pain. Further, the examiner stated that the May 1984 separation exam is silent for recurrent/chronic back pain/complaints and the spine exam is documented as normal. Hence, the examiner stated, in the available medical records there is no evidence of a chronic/recurrent lumbar spine/back condition making his current condition less likely than not due to AD period. Regarding aggravation of a previous condition, the August 2016 examiner stated that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner pointed to the above listed citations indicating only one acute appearing incident of back pain in 1982 with normal separation exam. Hence, the examiner stated, it is less likely than not that any back condition was permanently aggravated by AD period, particularly as evidenced by a normal separation exam. June 2018 private treatment record showed diagnoses of lumbar radiculopathy, chronic low back pain, and degeneration of lumbar intervertebral disc. Regarding a nexus, there is positive and negative evidence of record. The Veteran submitted private opinions that support a finding that his back disability is related to service. However, VA opinions have found that his disability is less likely than not related to service. Despite such conclusions, the VA opinions impermissibly rely too heavily on the lack of documentation of back complaints within the separation examination in 1984 and from 1982 until 1991, despite documentation of back treatment in 1991. Therefore, the Board finds them to be inadequate and less probative than the private opinions that connect his disability to service.   Following a review of the record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s back disability is related to his service. Accordingly, the Board resolves reasonable doubt in the Veteran’s favor and grants service connection for a back disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Wilson, 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.