Citation Nr: 21004530 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-26 925 DATE: January 27, 2021 ORDER The claim of entitlement to service connection for a low back disability is reopened. Service connection for a low back disability is granted. FINDINGS OF FACT 1. In a July 2011 decision, the Board declined to reopen a previously denied claim of entitlement to service connection for a low back disability; evidence received since that denial relates to unestablished facts necessary to substantiate that claim. 2. A low back disability was incurred during active duty service. CONCLUSIONS OF LAW 1. The July 2011 Board decision is final; new and material has been received to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C. §§ 5108, 7103, 7104; 38 C.F.R. §§ 3.156, 20.1100, 20.1104. 2. The criteria for service connection for a low back disorder are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1978 to January 1981. This matter is before the Board following his appeal of a September 2014 rating decision. In October 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Service Connection The Veteran is seeking service connection for a low back disability, which he contends is related to injury, heavy lifting, and extended marching in service. Initially, the Board observes that, in an unappealed July 2011 decision, the Board declined to reopen a previously denied claim of entitlement to service connection for a low back disability because it found that evidence received since the last final denial did not raise a reasonable possibility of substantiating the claim and was not “convincing that current low back disorders are of service origin.” Since that decision, new and material evidence has been received to reopen his claim, including the Veteran’s competent testimony that he has had back pain since service and that a VA clinician related his back pain to service. Thus, the claim is reopened. Turning to the merits of the claim, following a review of the record, the Board finds that service connection for a low back disability is warranted. Generally, in order to prove 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). Here, the Veteran has a current disability, as an August 2015 VA examination examiner diagnosed a lumbosacral strain and degenerative disc disease. The record also supports an in-service injury, as the Veteran was seen on numerous occasions in service for back pain. For example, service treatment records (STRs) show that he sought treatment in September 1979 for “severe chronic pain and tenderness” in the lumbar spine, at which time it was noted that the Veteran did “a lot of heavy lifting” and had a prior back injury during basic training. In May 1980, he was again seen following a lifting injury and it was noted that he had a history of low back pain. Thus, the only remaining question is whether the Veteran’s current low back disability is related to service. The Board finds that it is. In this regard, the Veteran has provided competent and credible lay testimony of the onset of low back symptoms in service and a continuity of those symptoms since. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Falzone v. Brown, 8 Vet. App. 398 (1995) (lay person competent to testify to pain and visible flatness of his feet). His testimony is consistent with the record, including STRs documenting chronic low back problems throughout service, and post-service records documenting complaints of chronic back pain as early as 1983. Although the Veteran may have sustained intercurrent injury to his back after service, the Board finds that the record clearly establishes the clinical onset of his chronic low back disability to be in service. In this regard, the STRs document ongoing complaints of chronic low back pain that began with basic training. Notably, the Veteran did, in fact, report trouble with low back pain during his October 1980 separation examination despite checking the corresponding box to deny a history of recurrent back pain on a Report of Medical History. Specifically, the Veteran wrote “I am in fair health due to LBP…” and reported a back injury in 1978. Then, he started pursuing service connection for the low back in June 1983, just over two years after separation from active duty and prior to any intercurrent back injury shown by the record. Moreover, the Veteran consistently attributed the onset of his back problems to service. In an August 1983 statement, the Veteran wrote that his back had not bothered him until the Army, and that his problems started in basic training. He wrote that he was in the hospital for a day and a half, and that his back problems continued when he was stationed in Germany. Consistent with his report, STRs show that following a back injury in March 1978, the Veteran was treated at the “ER MAH.” Then, during Reserve service examinations in August 1984 and October 1984, the Veteran reported recurrent back pain and it was noted that he had experienced intermittent low back pain since 1979. Thereafter, he continued to seek treatment for back pain in June 1988, July 1988, January 1990, and February 1990. In November 1996 and August 2000, he again reported chronic intermittent back pain since 1978 when he was in basic training. He was treated again for chronic back pain in February 2002, June 2004, and June 2009 and, during an August 2015 VA examination, again reported the onset of his back problems in service. The Board is cognizant that the August 2015 VA provider opined that the Veteran’s degenerative disc disease of the lumbar spine was less likely than not incurred in service. However, the Board finds that the opinion lacks probative value because it failed to address the competent and credible lay statements of the Veteran regarding the onset and course of his low back symptoms, which is supported by the record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning and that it must be clear that the medical expert applied valid medical analysis to the significant facts of a particular case). Moreover, the opinion is speculative, in that it notes that back pain may be related to degenerative disc disease, which can occur with aging, but also that most low back pain follows injury or trauma. There is no further explanation for why the Veteran’s current back disability is not related to the documented back trauma, injuries, and pain in service, and the continued and consistent complaints of intermittent yet chronic back pain since service. In sum, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran’s current low back disability is related to his military service. Therefore, resolving doubt in favor of the Veteran, his claim for service connection for a low back disability is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). S. C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Fagan, Aileen 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.