Citation Nr: 21002717 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 14-28 933A DATE: January 14, 2021 ORDER Entitlement to service connection for thoracolumbar degenerative disc disease is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, it is at least as likely as not that his thoracolumbar degenerative disc disease is etiologically linked to his active duty service. CONCLUSION OF LAW The criteria for service connection for thoracolumbar degenerative disc disease 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 Air Force from October 1982 to January 1986. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by the Agency of Original Jurisdiction (AOJ). The appeal was remanded in November 2018 to obtain missing private treatment records and an adequate medical examination and opinion as to the nature and etiology of the Veteran’s low back disability. The Veteran was afforded a VA examination, and a new medical opinion was associated with the file in November 2019. The Board find the examiner’s opinion inadequate. However, in light of the full grant of benefits awarded herein, further remand is not required. Entitlement to service connection for thoracolumbar degenerative disc disease Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a veteran 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, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 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 v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). There is no dispute that the Veteran has been diagnosed with degenerative disc disease of the spine. Therefore, the first element of service connection is satisfied. The Veteran’s service treatment records reveal that he was treated for multiple back injuries during service. Importantly, in September 1985, after the Veteran’s August 1985 separation examination but before he separated from service in January 1986, the Veteran injured his back and was diagnosed with back strain. Accordingly, the Board finds there is sufficient evidence to establish the second element of service connection. As to a nexus, the evidence for and against the claim is evenly balanced. The Veteran was afforded a VA examination in November 2012. The examiner opined that the Veteran’s current low back condition was not related to treatment for muscle strain in service. The rational was that strain was not a current condition based on symptoms and examination, and muscle strain does not cause disc degeneration which is associated with aging. In July 2015, a private chiropractor opined that the precipitating event while on active duty may have started a cascading effect of long-term back pain that has developed into premature degenerative arthritis of the lumbar spine. In a November 2015 addendum opinion, the chiropractor acknowledged review of the Veteran’s claim file and clarified that the Veteran’s 1985 back injury may have predisposed him to exacerbated back pain because it caused loss of lumbar curve. The Veteran underwent a second VA examination in October 2015. The examiner found that the claimed back condition was less likely than not incurred in or caused by service. The examiner relied on a lack of evidence of chronic back pain or diagnosis during service, no continuing back problems over the 10 years following service, the medical literature which documents that 90 percent of acute back strains resolve within six weeks regardless of treatment, and no medical connection between back strain and arthritis. The examiner also noted that the July 2015 opinion from the private chiropractor did not note review of the Veteran’s STRs or medical records. The Board found this opinion inadequate and remanded the claim for an addendum opinion addressing the lay evidence regarding continuity of symptomology. In December 2019, the Veteran attended a third VA examination. The examiner found the in-service condition resolved. The examiner failed to address the positive nexus opinions of record. The December 2019 opinion again relied predominantly on lack of treatment after service specifically finding “there are no medical records for many years that pertain to [the Veteran’s] back therefore it is less likely than not his current back problem is due to anything that occurred while in the military.” Initially, the Board notes that the examiner relied on the Veterans normal separation examination without acknowledging the September 1985 injury. Moreover, the Board affords little probative value to this opinion as the examiner failed to adequately consider probative lay evidence of record and was overly reliant on the lack of post-service treatment in providing a negative nexus opinion. The Board notes that the absence of documented treatment or complaints in service or thereafter is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Upon review of the record, the Board finds that there is no reason to afford more probative weight to the 2012 and 2015 VA opinions over the private chiropractor’s opinions. The private and VA opinions were provided by medical professionals equally competent to render an opinion regarding whether the Veteran’s back condition was etiologically linked to his active duty service. Moreover, all of the opinions reflected reasoned consideration of the evidence of record and included sufficient explanation to the respective opinions. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for degenerative disc disease of the thoracolumbar spine is warranted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman 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.