Citation Nr: 21003644 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-49 305 DATE: January 22, 2021 ORDER Entitlement to service connection for a lumbar spine strain and herniated disc is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the evidence supports a finding that his lumbar spine disability was due to his active service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1101, 1110, 1112,1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2009 to May 2010. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a hearing before the undersigned. This matter was remanded in January 2020 for additional development. 1. Entitlement to service connection for a lumbar spine disability Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). The Veteran asserts that his lumbar spine disability was caused by an in-service incident. The Veteran has reported that he injured his lower back when unloading a truck and he also reported falling and hitting his back on a metal step. The Veteran has reported experiencing back pain since the in-service incident. A review of the Veteran’s service treatment records shows that in September 2009, he was treated for lower back pain. Treatment notes show that the Veteran was injured unloading trucks and felt pain. The Veteran was assessed with acute mechanical lower back pain. VA medical records and examinations demonstrate diagnoses of lumbar strain, lumbar radiculopathy, and residuals of lumbar herniated disc. An August 2010 post deployment assessment shows that the Veteran reported he fell in Iraq and injured his back, but was better now. Post service treatment records from an August 2013 private physical therapy evaluation shows the Veteran reported lumbar thoracic pain, and reported that the first time he had this pain was when he was stationed overseas. The physical therapist reported that the pain seemed to be a residual from the back while overseas. An April 2017 VA treatment record shows that the Veteran reported back pain constant since 2010 when he was loading a truck and fell backwards off the truck. A May 2017 VA disability benefits questionnaire (DBQ), shows that the Veteran was diagnosed with a lumbosacral strain. During the examination, the Veteran reported the in-service incident of a back injury. The Veteran reported constant back pain since that incident. After a review of the evidence of record, the examiner opined that it was less likely than not that the Veteran’s lumbar spine disability was caused by active service. The examiner noted that the medical evidence showed treatment for low back pain in September 2009, 2013, and 2017, but the evidence did not show continued care for low back pain since the in-service treatment for back pain. A September 2019 VA treatment record shows that the Veteran reported he injured his back in Iraq 10 years prior. At an October 2019 Board hearing, the Veteran testified that after his back injury in 2009, he had continued to experience pain since that incident. Additionally, the Veteran’s mother testified that when the Veteran returned from his service in Iraq, she noted by the way he was walking and tried to do things, that his lower back was bothering him. She also testified that she could not remember a back injury occurring after his active service. A November 2019 VA treatment record shows that the Veteran reported he initially injured his back in the military when he fell backward striking his low back on an edge of a step while lifting a heavy gun into a truck. The treating physician remarked that it was more that 50 percent likely that this incident contributed to traumatic arthritis and possible herniated disc at the L4-L5 level. A March 2020 VA back DBQ shows that the Veteran was diagnosed with a lumbar spine disability to include arthritis. After a review of the evidence, the examiner opined that it was less likely than not that the lumbar spine disability was caused by active service. The examiner remarked that the overall impression was that the Veteran has a history of back pain that resolves and then recurs in association with repetitive use at work and not military service. The examiner reported that he then experienced a disc herniation at L4-5 which cannot be associated with the previous episodes of back pain. The examiner noted that the use of the word "continuous" has not been well defined, and records seem to indicate there is discontinuous back pain more associated with his more recent work than with the documented episode while in service. Therefore, the examiner determined that it was less likely than not that the current back complaints made by the veteran were incurred while in service. The Board has weighed the probative evidence of record and resolves reasonable doubt in favor of the Veteran’s claim for entitlement to service connection of a lumbar spine disability. Here, the Veteran's statements as to his reports of continuity of symptomatology of back pain since the 2009 documented low back injury, are all deemed to be competent evidence. The Board also finds it significant that the Veteran’s mother reported that she observed the Veteran’s low back pain while he was still on active service, and since separation from active service. The Board also finds his statements credible, based on the evidence of record as described above. The Board finds no reason to believe otherwise. Additionally, while VA examiners have opined that it was less likely than not that the Veteran’s lumbar spine disability was caused or related to his in-service low back injury, the Board notes that both VA examiners have determined there was no evidence of continuity of treatment from 2009 when the Veteran first injured his lower back to 2013, when he first sought treatment for a back condition after service. In the explanation for both opinions, it is clear that the examiners did not find the Veteran’s reports of continuity credible. For this reason, neither opinion is accorded probative value. Furthermore, the 2020 examiner opined that the herniated disc was not related to any in-service injury but provided no supporting explanation; this finding also is assigned no probative value. However, in light of the in-service trauma to the low back and the Veteran's and his mother’s competent and credible accounts regarding the onset and continued symptomatology of his low back pain, the current diagnosis of a lumbar spine disability, and the positive opinions of record that are based on the continuity of back problems, the Board finds that this evidence outweigh the VA examination reports concludes and affording the Veteran the benefit of the doubt, service connection is warranted. Accordingly, in resolving all reasonable doubt in the Veteran's favor, service connection for a lumbar spine disability, is granted. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.