Citation Nr: 21003657 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-17 209 DATE: January 22, 2021 ORDER Entitlement to service connection for a low back disability to include residuals of a low back injury is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, his low back disability, to include residuals of a low back injury is etiologically related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a low back injury have been met. 38 U.S.C. §§ 1112, 1113,1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Historically, the Veteran’s claim for service connection for a low back disability was originally denied in a July 1970 rating decision, which became final. In a March 2006 rating decision, a claim to reopen service connection was denied. In December 2008, the Veteran testified before a Veterans Law Judge who is no longer at the Board in connection with his claim to reopen. That decision was appealed to the Board, and in August 2009, the Board also denied reopening his claim. Thereafter, the Veteran appealed the Board’s August 2009 decision to the Court of Appeals for Veterans Claims (Court). In a March 2011 Memorandum Decision, the Court vacated the Board’s August 2009 decision and remanded the case for readjudication. In November 2011, the Board granted the Veteran’s petition to reopen his claim for service connection and remanded the underlying claim for further development. The Board further remanded the claim for additional development in December 2012 and May 2013. In a January 2014 decision, the Board denied service connection for the Veteran’s low back disability, finding that there was no competent, credible evidence establishing a nexus between the Veteran’s current back disability and his service. The Board’s decision became final in January 2014 when it was mailed to the Veteran. The Veteran filed a claim to reopen service connection for his low back disability in April 2014. The RO reopened the claim but denied the claim on the merits in a May 2015 rating decision. In May 2019, the Veteran testified via teleconference before the undersigned Veterans Law Judge. In a November 2019 decision, the Board also reopened but continued the denial of the Veteran’s claim for service connection for his low back disability, to include residuals of a low back injury. Thereafter, the Veteran appealed the November 2019 decision to the Court. In an August 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the November 2019 decision to the extent that it denied service connection for the Veteran’s service connection claim for his low back disability. The Court instructed that the matter be remanded for readjudication consistent with the terms agreed upon by the parties in the JMPR. As such, this claim is again before the Board for adjudication. 1. Service connection for residuals of a low back injury The Veteran asserts that his current low back disability is related to a low back injury he sustained during boot camp training. See May 2019 Hearing Transcript. VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is shown as such in service or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). In cases where a chronic disease is “shown as such in service”, the Veteran is “relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought.” Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, “there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.” Id. If evidence of a chronic disease is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. “Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Id. at 1339. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Upon review of the evidence, the Board finds that service connection for a low back disability to include residuals of a low back injury is warranted. As an initial matter, while the issue of whether the Veteran had a pre-existing disability prior to service was been raised, the Board ultimately found that his current back disability did not clearly and unmistakably preexist his military service. See November 2019 Board Decision. This favorable finding will not be disturbed. As such, his claim is one for direct service connection. The evidence of record reflects that the Veteran has current diagnoses of degenerative arthritis (confirmed on x-ray), as well as intervertebral disc degeneration, osteoarthritis, thoracic sprain, and lumbago. As such, the first element has been satisfied. The Board further finds that the Veteran’s STRs demonstrates an in-service injury, treatment, and diagnosis. His STRs shows he was treated in service at an orthopedic clinic in September 1969 after experiencing low back pain for two weeks after a fellow soldier reportedly jumped on his back following a physical training test. While his x-ray results were essentially negative, the radiologist suggested that there might be a cyst in the posterior element of L1. However, during an examination in September 1969, a Medical Board examiner could not confirm any findings of a cyst of the spine. Nonetheless, upon conclusion of the examination, the Medical Board examiner noted impression of the Veteran’s low back pain was camptocormia and a manifestation of low back pain that existed prior to service. Based on the examination, the Veteran was subsequently found unfit for induction to the military and medically discharged for “psychogenic musculoskeletal reaction, manifested by back pain and limitation of motion.” Despite conflicting in-service medical reports relating to the Veteran’s low back pain, the Veteran, nonetheless, complained of low back pain, was treated for low back pain, and diagnosed with a low back condition in service. Thus, in resolving any doubt in favor of the Veteran, the Board finds that the second element has been satisfied. With regards a medical nexus, there are competing medical opinions of records. At a December 2011 VA examination, the Veteran stated that he injured his back “when he fell during an obstacle course” and that he had had back pain since that time. He reported that he “could not continue with construction work because of low back pain” after he was discharged, and that he had worked in odd jobs and as a janitor and bus driver. The December 2011 lumbar spine x-rays were unremarkable. Upon reviewing the Veteran’s claims file, including his STRs, the December 2011 VA examiner opined that his low back condition was not related to service. The December 2011 VA examiner noted that the military orthopedic records documented a pre-existing low back condition, as well as back injuries in May and August 1985. The December 2011 examiner opined that the Veteran’s current low back condition was the result of activities and accidents outside of service and noted that the Veteran’s 10-year career as a bus driver could also cause low back pain. In an addendum opinion, a June 2013 VA examiner opined that the Veteran’s current low back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted review of the Veteran’s low back diagnosis since June 2005, his low back problems in service, his post-service back injuries, the reports of back symptoms in the years following his service, and private medical treatment records provided by the Veteran. The VA examiner further referenced the December 2011 VA examiner’s summary of the Veteran’s condition and stated that recent additions do not change the original opinion. The VA examiner stated that his x-rays findings were minor and seen in many people of his age, with or without symptoms, and provide no evidence of a significant back injury in the 1960s. The VA examiner also noted the inconsistent orthopedic findings in service and stated that those findings would be positive for Waddell’s sign and that his low back pain pre-existed service. A subsequent outside medical opinion obtained in September 2013 by the VA further showed that it was not likely that his current back disability was related to his in-service injury. The physician explained that in September 1969, the Veteran demonstrated inconsistent findings and camptocormia, “both of which suggested symptom magnification or outright falsification” or malingering. The physician noted the Veteran was treated for two back injuries while a civilian in 1985 and that “spinal imaging then and more recently has failed to demonstrate evidence of spinal disk injury or disease.” The physician further stated that discal dehydration and minimal hypertrophic changes of facet joints were age related and common. In connection with the Veteran’s April 2014 petition to reopen his service connection claim for his low back disability, he submitted a March 2014 private medical opinion on the etiology of his low back disability. See December 2014 VA 10-1000 Hospital Summary/Compensation and Pension Exam Report. In the March 2014 private medical opinion, the private doctor noted that while he did not conduct an examination of the Veteran, he did review the medical records, STRs, and VA decisions denying service connection for the Veteran’s low back disability. The private doctor stated that he crossed checked the medical evidence delineated by the Board. Upon review of the Veteran’s claims file, the private doctor stated that he made the assumption that the Veteran’s low back disability did not pre-exist service based on the Board’s finding, that there was some sort of back injury in service, that the Veteran had a back injury in 1985 and 1998, and that the Veteran has a current back disability. The private doctor noted his understanding of the Board’s findings and the VA examiners in the Veteran’s matter but noted disagreement with the objective evidence relayed in the records and BVA decision. He stated that when examining the record as a whole, it was more likely than not that the Veteran’s current back problem arose from his time in service. The private doctor noted the Veteran’s current diagnosis of degenerative joint disease and stated that “[u]pon first blush the 12/2011, 9/2013, and 6/2013 examiners would be correct in their assessment that the Veteran’s low back problems are due to post-service employment and/or age” as both factors contributes to his current situation. However, the private doctor stated that it does not tell the whole story. The private doctor defined and explained the arthritis and osteoarthritis process and noted that injuries contribute to the degeneration process which is particularly important in the Veteran’s case. The private doctor stated that the key question is “when did the degenerative process in the Veteran’s back begin?” Upon noting the Veteran’s history of back injuries and the aging process, the private doctor stated that based on his assumption that the Veteran sustained a back injury in service, the Veteran’s osteoarthritis more likely than not started during service and was exacerbated by the subsequent injuries, age, and symptoms reported. The private doctor further addressed the difference between healing and recovery and stated that while the Veteran recovered for his initial back injury, it never fully healed due to the degenerative nature and progress of osteoarthritis conditions. In light of this discussion, the private physician stated, “this accounts for what is considered questionable evidence of whether there were true injuries to the veteran.” The private physician reiterated that osteoarthritis does not lend itself to healing but does to recovery, of which the Veteran has experienced at various stages of the progression of the condition, The private doctor stated that this process of healing and recovery explains why there may not be a continuity of symptomatology which is not unusual for the Veteran’s condition. Subsequently, in a May 2015 addendum medical opinion, the May 2015 VA examiner ultimately disagreed with the March 2014 private physician’s opinion stating that he made several assumptions about the nature of the Veteran’s back injuries without examining the Veteran. The May 2015 examiner also explained that the March 2014 private physician relied on the high prevalence of osteoarthritis in people who are over 60 years old when forming his conclusions on the etiology of the Veteran’s low back disability. The May 2015 examiner stated that the commonality of osteoarthritis actually decreased the likelihood that that the Veteran’s osteoarthritis began during his military service. Upon review of the evidence, the May 2015 examiner opined that the Veteran’s low back disability less likely than not originated from his in-service back injury. The Board finds that the private and VA medical opinions are all equally probative. While the Board finds the medical opinions competent, each has certain deficiencies as identified above, and remanding the matter again, in an effort to obtain a definitive opinion would be contrary to the purpose of the VA adjudication system. In addressing the Veteran’s lay reports, it finds that the Veteran made inconsistent statements regarding the circumstances of his in-service injuries. However, aside from the single report that he injured his back after falling off from an obstacle course during basic training, he has consistently maintained his assertion that he injured his low back during service after a fellow soldier jumped on his back. His STRs further support this assertion. With regards to the Veteran’s post-service treatment records for his low back disability, the Veteran has stated multiple times that he was seen by a private physician. However, the Veteran states that the private physician is deceased and that he is unaware of where the records are located. The Veteran has provided VA with the necessary information to obtain such records, but no response has been received following attempts to obtain the relevant treatment records by hid treating physician from 1969 to 1985. Nonetheless, the Board finds that the Veteran has provided a credible history of his low back pain as it was noted in service and he continued to complain of back pain following his discharge from service. See June 1970 VA Examination. Based on the lay evidence and medical evidence of record, the Board finds that the evidence is at least in equipoise as to the etiology of the Veteran’s low back disability. In applying the benefit of the doubt doctrine, the Board resolves all doubts in favor of the Veteran. Thus, the Board finds that service connection for a low back disability to include residuals of a low back injury is granted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.