Citation Nr: 21002225 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-15 111 DATE: January 13, 2021 ORDER Entitlement to service connection for chronic low back pain is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the probative evidence establishes that the Veteran’s chronic low back pain with functional loss began in service and has continued to the present. CONCLUSION OF LAW The criteria for service connection for chronic low back pain have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to November 1968 with additional Navy Reserve service. He appeals a March 2017 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for a back condition. A Board of Veterans’ Appeals (Board) hearing was held in January 2021. The transcript from the hearing has not yet been associated with the file, as the appeal is being granted under the Board’s “One Touch” program. However, the hearing transcript will be added to the claims file in the ordinary course of business. A veteran is entitled to VA disability compensation if there is a current disability resulting from personal injury suffered in active service, or for aggravation of a preexisting injury suffered in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran has debilitating chronic low back pain. See, e.g., October 2008 Dr. G.T. treatment records (“three lumbar surgeries since 1976…Veteran is careful with what he does”). Pain alone constitutes a disability when it causes functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1361-62 (2018). Here, the Veteran testified at the January 2021 Board hearing to suffering functional loss due to his chronic pain and the record reflects he takes narcotics and muscle relaxers to deal with his lower back pain. See August 2013 VA treatment records (“lower back pain: more pain over time, T3 no longer holding. Using Soma for spasms…not able to golf”); October 2018 Dr. G.T. treatment records (prescribed Oxycodone). As a result, the Board finds that the Veteran’s lower back pain reaches the level of functional impairment of earning capacity contemplated in Saunders. Thus, the first element for service connection is met. At the January 2021 Board hearing, the Veteran testified he experienced back pain with heavy lifting in service. Specifically, he contends his lower back pain began after “loading ammunition” and other heavy containers while only weighing “approximately 130 pounds” during service. See August 2016 Veteran statement. The Veteran contends he sought treatment in-service and “the ships doctor said it was only strained muscles.” Id. The Veteran’s June 1966 entrance examination corroborates his statement that he weighed “approximately 130 pounds.” See June 1966 entrance examination report (135 pounds). Although, the Veteran’s record does not contain service treatment records other than his entrance and separation examination reports, the Veteran is competent to testify to the history and symptoms of his in-service back pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In October 2016, the Veteran told his treating physician he “initially injured [his] back in 1967 while loading ammunition that weighed 70 to 100 pounds.” See October 2016 Dr. G.T. treatment records. The Board finds the Veteran’s consistent lay assertions credible as statements made for the purpose of medical treatment are viewed as exceptionally credible. See White v. Illinois, 502 U.S. 346, 356 (1992). Thus, the Board finds the second element of service connection has also been met. As such, the crux of this case centers on whether the Veteran’s current low back pain is related to his in-service low back pain. In August 2016, the Veteran’s treating physician provided a medical opinion regarding the Veteran’s current chronic back problems. See August 2016 Dr. G.T. medical opinion. Dr. G.T. noted he has treated the Veteran since 2007 and stated the Veteran “initially injured his back while serving in the Navy in 1967” and “it is reasonable to conclude that this injury is 51 percent, or more, responsible for subsequent back problems.” Id. As rationale, Dr. G.T. noted the Veteran stated his in-service injury included “rotational movement of his lumbar spine which can cause significant damage to the intervertebral discs.” Id. As Dr. G.T. treated the Veteran for over twenty years, considered the pertinent medical history and lay statements, and provided thoughtful analysis, the Board finds Dr. G.T.’s medical opinion probative and corroborated by the record. The record reflects the Veteran has continuously sought treatment for his chronic lower back pain. See, e.g., October 2008 Dr. G.T. treatment records (“three lumbar surgeries since 1976”); May 2009 Yakima Valley Memorial Hospital records (chronic back pain); June 2011 Dr. G.T. treatment records (chronic lower back pain); February 2013 VA treatment records (“chronic lumbar degenerative disc disease with pain and spasms); October 2016 Dr. G.T. treatment records (“initially injured [his] back in 1967 while loading ammunition that weighed 70 to 100 pounds”). Accordingly, as there is no evidence to the contrary, the Board finds the competent and credible evidence, including that pertinent to service, establishes that the Veteran’s chronic low back pain began is related to his service and the third element for service connection is met. Thus, resolving all doubt in the Veteran’s favor, the Board grants service connection for chronic low back pain. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.