Citation Nr: 21003808 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-02 888 DATE: January 22, 2021 ORDER Entitlement to service connection for a lumbar spine condition is granted. FINDING OF FACT It is at least as likely as not that the Veteran’s lumbar spine condition is due to his active-duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2003 to July 2004, with additional prior periods of active and inactive duty for training. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of January 2016 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in March 2016. The RO issued a statement of the case (SOC) in November 2016 and the Veteran’s timely appeal to the Board followed in January 2017. The undersigned Veterans Law Judge (VLJ) conducted a hearing via videoconference in September 2019. A transcript of the hearing is of record. 1. Entitlement to service connection for a lumbar spine condition. Generally, service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may 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). The Veteran asserts that he has a lumbar spine condition as a result of an injury sustained during his active-duty service. See August 2019 Transcript at 4; see also September 2017 Service Treatment Records (STR) (corroborating circumstances of in-service injury). The Veteran has been diagnosed with a herniated disk and intervertebral disc syndrome. See December 2015 Medical Treatment Records at 1; see also January 2016 VA Examination Report at 1-2; see also June 2016 Medical Treatment Records at 1. As an initial matter, the Board therefore finds that the first and second Shedden factors have been met. The Veteran underwent a VA examination on this issue in January 2016. The VA examiner opined that it was more likely than not that the Veteran’s lumbar spine condition was not due to or aggravated by his active-duty service. See January 2016 VA Examination Report at 9-10. However, the VA examiner’s opinion is based largely on the absence of in-service treatment records and the period of time between the Veteran’s active-duty service and more regular treatment of his lumbar spine condition. See id. While a prolonged period without medical complaint can be considered along with all the other evidence of record, the Board may generally not consider the absence of evidence as substantive negative evidence when adjudicating a claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (2000); see also Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Additionally, the VA examiner was unable to consider additional evidence subsequently submitted in support of the Veteran’s claim, including lay observations from the Veteran’s spouse and a private medical opinion from the Veteran’s treating physician. See June 2016 VA Form 21-4138 at 2 (asserting that the Veteran’s complaints of neck and back pain began shortly after his in-service injury); see also id. (asserting that the Veteran did not seek contemporaneous medical treatment for professional reasons). The Board has therefore considered whether remand is warranted for a new VA examination that considers this additional evidence. However, the Board is also mindful of regulatory constraints on its ability to remand for further development, which “should not be undertaken when [the] evidence present is sufficient for this determination.” 38 C.F.R. § 3.304(c); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (noting that the final analytical step in considering whether a VA examination is warranted is whether there is “insufficient competent medical evidence on file for the Secretary to make a decision on the claim”). The Board concludes that remand is not warranted in light of the private medical opinion submitted by the Veteran’s treating physician, who opined that the Veteran’s lumbar spine condition is more likely than not due to his active-duty service. See June 2016 Medical Treatment Records at 1 (reviewing the Veteran’s medical history and noting “no other known risk factors that may have precipitated his current condition”); see also id. (attributing lumbar spine condition both to in-service injury and to heavy equipment carried during active-duty service). Because the private medical opinion addresses the Veteran’s medical history, the earlier onset of his symptoms, and the absence of additional risk factors, the Board finds it adequate to support adjudication of the Veteran’s claim. “[Most] of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight… if it contains only data and conclusions.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board therefore concludes that the third Shedden factor has been met and the assignment of service connection for the Veteran’s lumbar spine condition is warranted. 38 C.F.R. § 3.303. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.