Citation Nr: 21003377 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-09 067 DATE: January 21, 2021 ORDER Entitlement to service connection for degenerative joint disease (DJD) of the lumbosacral spine is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s lumbar spine DJD was related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for lumbar spine DJD 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 in the Army from January 1978 to November 1978. He died in October 2015. In December 2019, the Regional Office (RO) of the Department of Veterans Affairs (VA) recognized the appellant, the Veteran’s surviving spouse, as substitute claimant for the purposes of continuing the Veteran’s VA compensation claims that were pending at the time of his death. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the VA Regional Office, which denied service connection for a back condition. In October 2013, the Veteran filed a Notice of Disagreement and a Statement of the Case was issued in February 2014, continuing the denial of service connection for a back condition. In March 2014, the Veteran perfected his appeal to the Board. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge 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). Entitlement to service connection for lumbar spine DJD. In February 2013 a VA examiner diagnosed the Veteran with lumbar spine DJD. Thus, a current disability has been demonstrated. In January 1978, service treatment records show that the Veteran experienced back pain for which he sought medical attention. Therefore, the in-service injury element is met. Thus, the remaining question is whether a nexus existed between the Veteran’s DJD and his in-service back injury. In support of a nexus, in a January 2012 treatment report, the Veteran asserted that he had continuous back problems since military service. In an October 2013 statement, the Veteran stated that his back pain was the same pain he suffered when in service but had worsened significantly. In February 2014, he indicated that the pain was also in the same place as it was when he sought treatment for it while in the Army, but the pain had gotten progressively worse as he got older. In a March 2013 statement, the Veteran’s wife reported the Veteran experienced back pain all the time. The Veteran's and his spouse’s statements regarding back symptoms in and since service are competent, credible, and consistent with the evidence of record. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay witnesses are competent to testify as to their observations. Evidence against the claim includes a February 2013 VA examination report, in which the examiner opined that the Veteran’s back pain was less likely than not incurred in or was caused by military service. As rationale, while the examiner acknowledged the Veteran received treatment for back pain during service, he stated the examination of his back was generally within normal limits, except for a mild spasm, and the diagnosis was a muscle strain. The examiner also stated that the Veteran’s separation exam, in September 1978, identified no spinal abnormalities and noted the absence of treatment records for the Veteran’s back pain from the time he was discharged from the military through 2008. Citing a discussion paper, “Back Pain” (Feb 2003), the examiner concluded that the Veteran’s DJD was most likely caused by aging and not due to an isolated incident of muscle strain that occurred during service 35 years ago. The opinion is inadequate and of little probative value, as the examiner did not take into account the Veteran’s lay statements as to his continuous back symptoms since leaving service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”).  Further, as the Veteran’s and his spouse’s lay statements regarding his lower back pain were competent and credible, the lack of reports of back pain post-service is not fatal to the Veteran’s service connection claim. Buchanan, 451 F.3d at 1336 (“If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran’s ability to prove his claim of entitlement to disability benefits based on that competent lay evidence”). While the Board could remand the claim for another medical opinion, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The above evidence is sufficient to decide the claim. Given the competent and credible lay statements as to the Veteran’s continuous back symptoms since service, and the inadequate negative nexus opinion, the evidence is at least evenly balanced as to whether the Veteran’s lower back disability was related to his service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for DJD is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.K. Donaldson, 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.