Citation Nr: 21002285 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-12 507 DATE: January 13, 2021 ORDER Entitlement to service connection for a back disability, diagnosed as lumbosacral strain is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the Veteran’s back disability is caused by an in-service accident. CONCLUSION OF LAW The criteria for service connection for a back disability, diagnosed as lumbosacral strain are met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from April 1997 to April 2001, and from March 2002 to May 2008. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) November 2014 rating decision of the Agency of Original Jurisdiction (AOJ). In September 2020 the Veteran appeared before the undersigned Veterans Law Judge at a Board video hearing. A transcript of that hearing has been reviewed by the Board, and it is associated with the claims file. 1. Entitlement to service connection for a back disability The Veteran contends that his back disability is due to an in-service accident. 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, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay 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, 1167 (Fed. Cir. 2004). 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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, 1377 (Fed. Cir. 2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve any reasonable doubt in favor of the claimant. 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 preponderance of evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran has current diagnoses of chronic lower back pain, as well as a lumbosacral strain. Therefore, the first Shedden element necessary to establish service connection has been met. Additionally, the Veteran’s medical records show a September 2003 accident where he injured his back and sought treatment. This is corroborated by the Veteran’s testimony. As such, the Board finds that the second Shedden element necessary to establish service connection has been met. What is left for the Board to determine is whether the Veteran’s current back disability is caused by, due to, or otherwise related to his September 2003 accident. The Board notes that the Veteran’s medical records prior to September 2003 do not show any complaints of back pain. The Veteran’s medical records show that after his accident he underwent a regimen of physical therapy, which helped temporarily alleviate the symptoms of the Veteran’s back pain. An October 2003 treatment note shows that the Veteran’s back condition was “improving,” but was still only at about 75 percent healed. In May 2007 the Veteran was seen for a routine physical examination. The Veteran denied using over-the-counter (OTC) medication to treat his pain. At the time of the examination, the Veteran denied being in pain, but did state that he did experience pain “at times” and had ever since his accident. The physician described the Veteran’s pain as “intermittent.” A September 2007 treatment record entry reports that the Veteran could not pass certain physical fitness tests demanded by the Army due to his back pain. In April 2009 the Veteran underwent a medical examination upon enlistment with the Army Reserve. At the time, the Veteran denied having recurrent back pain and reported being in “good” health. However, October 2009 Army Reserve medical records show that the Veteran experienced “intermittent pain” that had “resulted from an old back injury.” A November 2012 treatment record shows that the Veteran’s back pain was “chronic” and “likely mechanical in nature.” The Veteran also reported ceasing physical therapy as he found it did not provide sufficient relief. Around the same time, the Veteran submitted a written statement to VA stating that his pain had been “constant” since his in-service accident. In March 2013 the Veteran testified that his pain had “never gon away” and had prevented him from activities such as standing or walking for prolonged periods, passing physical fitness examinations, it caused sleep issues, and prevented him from holding his daughter. An August 2016 treatment note found that the Veteran had experienced “chronic back pain since in-line-of-duty injury.” In December 2016 the Veteran was seen for a VA examination to determine the etiology of his back condition. The examiner diagnosed the Veteran with lumbosacral strain. The examiner opined that the Veteran’s back disability was less likely than not due to the Veteran’s in-service accident, on the basis that the Veteran continued to serve for around five years after the accident, and “there is no other evaluation or treatment noted.” Continuing, the examiner noted that “there is no continuum of evaluation and treatment on active duty.” The Board notes that the absence of evidence is not evidence of absence. And in this particular case, the examiner failed to address the 2007 medical records that document intermittent back pain, a similar finding in the Veteran’s Army Reserve treatment records, the fact that the Veteran had only one documented back injury (the aforementioned September 2003 in-service accident), or the Veteran’s own assertions that his back has caused him pain since the accident. While the Veteran is not a medical professional and cannot provide testimony as to the etiology of his condition, he is capable of providing evidence regarding the onset, frequency, and severity of the symptoms he experiences. Because the examiner failed to address the above factors when finding against a medical nexus in this case, the Board does not assign the examiner’s opinion probative value. A January 2017 private treatment note from T.M., a clinician who has been treating the Veteran for a number of years, described the Veteran’s current back disability as being “related to in-line-of-duty back injury.” T.M. also noted that the Veteran had “no subsequent back injuries” since his September 2003 accident. On its face, T.M.’s statement regarding the etiology of the Veteran’s back disability is insufficient for adjudication purposes as it is conclusory and not supported by any rationale. The Board finds that the evidence regarding the onset and frequency of the symptom’s show that the Veteran’s back pain did not begin until his September 2003 accident. The Veteran is competent to provide testimony as to the fact that he has experienced near constant pain, with only temporary periods of relief. He has consistently complained of back pain since the September 2003 accident. Combined with T.M.’s statements that the Veteran’s back disability is “related to” his active duty service, the Board finds that, after resolving all reasonable doubt in favor of the Veteran, the evidence of record supports a finding that service connection for a back disability, diagnosed as a lumbosacral strain, is warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.