Citation Nr: 21001233 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-41 190 DATE: January 7, 2021 ORDER Entitlement to service connection for a lumbar spine disability is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s current lumbar spine disability, to include degenerative disc disease, is causally related to his active service. CONCLUSION OF LAW Affording the Veteran the benefit of the doubt, the criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 2003 to January 2007. This matter originally came before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for lumbar disc disease (claimed as back condition). The Veteran filed a timely Notice of Disagreement (NOD), received by VA in January 2016. The RO issued a Statement of the Case (SOC) in June 2016 and the Veteran perfected a timely appeal via his submission of a VA Form 9 in August 2016. In a July 2019 decision, the Board denied service connection for a lumbar spine disorder (claimed as back condition). The Veteran appealed the Board’s July 2019 decision to the U.S. Court of Appeals for Veterans’ Claims (Court). While the appeal was pending before the Court, in June 2020, the Veteran’s then-attorney and VA’s General Counsel filed a Joint Motion for Remand (JMR). Later that month, the Court granted the parties’ motion, vacated the Board’s July 2019 decision, and remanded the matter to the Board for readjudication consistent with the Joint Motion. 1. Entitlement to service connection for a lumbar spine disability is granted. The Veteran contends that he initially sustained a back injury during active duty service, while stationed in Germany, and that he has been experiencing ongoing and progressing symptoms since that time. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In pertinent part, the Veteran’s service treatment records show that in June 2005, he sought treatment for back pain that had been ongoing for “9 days s/p knee to back” while he was playing soccer. The Veteran reported that his back pain was exacerbated with bending to the right (hurts on left). He also reported pain with flexion. Examination showed lower back pain and bilateral muscle spasms. The assessment was back sprain. Upon follow-up days later, the Veteran’s back pain was noted as “improved, with only mild residual symptoms and negative for radiculopathy.” In July 2006 the Veteran underwent a separation physical. At that time, his musculoskeletal complaints included right shoulder aching since a soccer collision in May 2006. Examination showed tenderness over the bicipital groove but no other musculoskeletal abnormalities. In pertinent part, the post-service record on appeal shows that in April 2009, the Veteran sought treatment for low back pain for the past two weeks. He denied trauma. He reported sciatica but denied numbness and tingling. Examination showed muscle spasm. The diagnosis was mid lower lumbar muscle strain. In January 2010, the Veteran sought treatment from a chiropractor with complaints of low back and left buttock pain. In September 2011 the Veteran again sought treatment with complaints of “low back pain, ongoing for two years.” It was noted that he had had 24 sessions with a chiropractor. An MRI revealed degenerative disc disease. He was diagnosed with chronic low back pain. It was noted that he had been taking pain medications and participating in physical therapy, but he continued to experience pain. He was referred to a spine center for specialty care of his lumbar spine disability. See e.g., September 2011UF Medical Record. In September 2011 the Veteran was seen by a spine specialist for an initial evaluation. At that time, it was noted that he had back pain, left radicular pain, and imaging studies showed “L5-S1 disc herniation which is comparable with clinical presentation.” It was determined that he would receive treatment with “lumbar epidural steroid injections under fluoroscopy.” See e.g., September 2011 JSC Initial Evaluation. In December 2011, the Veteran presented for follow-up of back pain. It was noted that he had a disc herniation (L5-S1, L4-5 with annular tear). The physician indicated that this condition is related to repetitive activity and the onset was years ago (initial pain). He was diagnosed with “spondylosis, lumbosacral and displacement, lumbar disc w/o myelopathy.” See e.g., December 2011 History and Physical Report #6. In May 2012 the Veteran again sought follow-up treatment for back pain. At that time, it was noted that the patient had been treated with sacroiliac injections and physical therapy. At that time, the Veteran indicated that the symptoms for his lumbar spine disability were improving. See e.g., May 2012 History and Physical Report #10. The Veteran was afforded a VA examination in April 2015. The examiner noted the Veteran’s claimed condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. After examination of the Veteran and review of the claims file, the examiner opined that the Veteran was noted to have complaints of back pain in 2005 but subsequent year demonstrated no complaints and normal back exam. Five years later, 2010 noted increased complaint of back until MRI in 2011 noted degenerative disc disease (DDD). The examiner opined that “it would be difficult to relate back sprain in 2005 to findings in 2011 based on time frame and one isolated complaint of back pain during service.” The Board notes that the VA examiner failed to consider the Veteran’s contentions that he did not seek treatment after discharge from service because he was attempting to get a civilian job and needed a clean health record. As an alternative and to keep his health record clean, he chose to seek advice from his mother-in-law, who is a physical therapist. An addendum opinion was issued in June 2016. After a review of the claims file and relevant medical literature, the examiner opined that the Veteran’s “diagnosis of lumbar disc disease is less likely than not (less than 50 percent) incurred in or caused by (the) low back strain with spasm due to trauma sustained while playing soccer during service.” The examiner noted that there were no records seen in which the Veteran was treated for a continuation of back problems that arose from the military service shortly after the Veteran’s active duty separation. See e.g., June 2016 VA Examination Report. Again, however, the examiner failed to consider the lay evidence of record. Associated with the claims file is a report from R.T., D.O., dated October 2020. Upon review of the claims file and examination of the Veteran, Dr. R.T. opined that “it is as least as likely as not the Veteran’s current condition of thoracolumbar spine degenerative disc disease was incurred in or caused by their active duty military service.” Dr. R.T. reported that the type of physical training and demands required of airmen can make individuals vulnerable and susceptible to degenerative changes and weakened ligaments at an accelerated rate, thereby inducing ligament tears later in life. Additionally, cartilage damage and narrowing of joint space can result and often won’t manifest until much later. See e.g., October 2020 Medical Report. Dr. R.T. further opined that “the absence of a complaint or treatment is not enough to negate the existence of a disability. Some injuries or acquired pain, like what was experienced by the Veteran, can sometimes lead to chronic pain that persists for months and even years after the initial event, especially if there was ligament or tendon damage that never properly healed.” It was Dr. R.T.’s opinion that the Veteran’s back disability simply worsened with time and was exacerbated when playing. Dr. R.T. explained that not every ache and pain means that an individual should and would seek medical attention, which would account for the Veteran’s gap in treatment from 2005 to 2009. The physician pointed out that the Veteran continues to complain of residuals (spasms, painful/limited motion, tenderness) and pain similar to, and consistent with, the active duty complaint and noted symptomatology. Dr. R.T. concluded that “the Veteran’s thoracolumbar spine issue, which clearly began on active duty, has worsened over time and with activity.” See e.g., October 2020 Medical Report. The Board finds that, resolving reasonable doubt in the Veteran’s favor, a grant of service connection for a lumbar spine disability is warranted. With regard to the first element of a service connection claim, the Board finds that the Veteran has a current lumbar spine disability. As set forth above, the clinical evidence of record documents degenerative disc disease of the lumbar spine. In addressing the second element, the lay evidence as well as the Veteran’s service treatment records establish that the Veteran sought treatment for a low back injury that he sustained while playing soccer on active duty. At that time, the Veteran was diagnosed with back sprain. The Board finds that the evidence establishes that the Veteran incurred a low back injury during active duty and was diagnosed as having low back strain. With respect to the third element, the nexus requirement, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s current lumbar spine disability is causally related to his in-service injury and sprain. In that regard, the Board finds the October 2020 positive nexus opinion offered by Dr. R.T. of great probative weight. Dr. R.T. rendered his opinion after eliciting a detailed history from the Veteran and performing a thorough review of the Veteran’s records. Moreover, the physician provided a reasoned conclusion and detailed rationale. Additionally, the Board finds that the opinion is consistent with the evidence of record. In that regard, the Board finds that the Veteran’s statements regarding the onset of his low back symptomatology and the continuity of his symptoms since service are competent and credible. (Continued on the next page)   The Board finds that the April 2015 and June 2016 VA opinions are afforded less weight as both of the VA examiners failed to consider the Veteran’s lay statements. Despite the absence of clinical evidence documenting back pain since service, the Veteran has explained that he chose not to seek treatment for his back condition because he was trying to obtain a job as a civilian and needed a clean health record. See e.g., April 2016 Veteran’s Statement. The Board notes that the relevant question is continuity of symptoms, not continuity of treatment. Accordingly, the Board has weighed the probative evidence of record and finds that the evidence is at least in relative equipoise as to the causal relation between the Veteran’s current lumbar spine disability and the in-service back sprain. Resolving any reasonable doubt in the Veteran’s favor, the evidence supports the grant of service connection for a lumbar spine disability. See 38 U.S.C. § 5107. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.D. Hobbs, 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.