Citation Nr: 21005003 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-09 872 DATE: January 28, 2021 ORDER Entitlement to service connection for a low back disability characterized as lumbar strain and multilevel degenerative disc disease is granted. Entitlement to service connection for a neck disability characterized as a cervical strain is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his lumbar strain and multilevel degenerative disc disease onset during his active service. 2. Resolving reasonable doubt in the Veteran’s favor, his cervical strain onset during his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability characterized as lumbar strain and multilevel degenerative disc disease have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § § 3.102, 3.303, 3.309(a). 2. The criteria for service connection for a neck disability characterized as a cervical strain have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § § 3.102, 3.303(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1994 to June 2000. In July 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. In October 2019, the Board remanded this appeal for further evidentiary development, specifically to obtain adequate opinions regarding the nature and etiology of the Veteran’s claimed disabilities. The Veteran's claims file does not contain all of his service treatment records. Attempts were made by the Agency of Original Jurisdiction (AOJ) to obtain the complete records. The Board recognizes its heightened obligation to explain findings and conclusions, and heightened duty to consider carefully the benefit of the doubt rule. However, this heightened duty does not lower the threshold for an allowance of a claim, for example where the evidence almost but not quite reaches the positive-negative balance. In other words, the legal standard for proving a claim is not lowered; rather, the obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). Service Connection A veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. § 3.303(a). A low back disability In the current appeal, the Veteran contends that he developed a low back condition during his active service. The evidence of the record establishes that the Veteran has a current diagnosis of degenerative disc disease and strain of his lumbar spine. See October 2016 and January 2020 VA Examination Reports; Private Medical Records. Regarding an in-service injury or event, the Veteran contends that he began to experience back pain when he was lifting weights during service. The service treatment records show that, in February 1995, the Veteran complained about hurting his back. The notation stated that there was no heavy lifting, but that the Veteran weight-lifted once a week. The assessment noted was a muscle strain. In May 1995, the Veteran complained of back pain. It was noted that the Veteran was lifting weights prior to his back pain occurring. The assessment given was mechanical lower back pain. Regarding whether there is a nexus between these in-service complaints and the currently diagnosed lumbar spine disabilities, an October 2016 VA examiner opined that it was less likely than not that the Veteran’s low back condition was incurred in, or caused by, his service. The examiner stated that there were solely two service treatment records for strain type of episodes early in-service, with 4½ years of service following those incidents in which no back complaints were noted. The examiner continued that an ongoing back condition has not been documented in post-service medical records and that the currently diagnosed degenerative disc disease of the Veteran’s lumbar spine was not the same condition that was shown in service. The examiner acknowledged the Veteran’s assertions that he sought medical attention from chiropractic care in the years immediately following service and responded that he was advised that he would need to send those records. As explained in the October 2019 Board remand, the October 2016 examiner did not thoroughly address the Veteran’s statements about experiencing continuous back symptoms since service. According, the Board remanded this issue for clarification from an appropriate medical professional. At a January 2020 VA examination, the VA examiner opined that it was less likely than not that the Veteran’s back condition was incurred in, or caused by, treatment, injury, or diagnosis during service. The examiner stated that the medical records reviewed did not document treatment, injury or diagnosis of a low back condition during service. The examiner noted that the Veteran reported in 1995, while lifting weights as part of physical training, that he had sustained low back pain. The examiner noted that records of low back pain complaints began in July 2006 and that further complaints of low back pain were not found until January 2016. Significantly, the October 2020 examiner erroneously states that the in-service medical records do not show complaints, diagnosis, and treatment of a back condition. The examiner also does not address the Veteran’s contentions of continuous symptoms and treatment since his service. Therefore, the Board assigns low probative weight to this opinion. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue"). In this matter, the Veteran has continuously asserted that he has experienced back pain during, and following, his service. The post-service medical records document the Veteran’s reports of having a history of back pain. The Veteran reported experiencing pain from weightlifting, as was documented in the service treatment records. Service connection can also be granted for chronic disabilities, if the evidence establishes that it manifested to a compensable degree within one year after the Veteran was separated from service. 38 C.F.R. § 3.307, §3.309. Service connection for chronic disabilities can be established through a showing of continuity of symptomatology since service, as an alternative to the nexus requirement. 38 C.F.R. § 3.303(b). This option is limited to chronic disabilities listed in 38 C.F.R. § 3.309(a). After a thorough consideration of this relevant evidence of record, the Board finds the Veteran's statements and testimony as to onset and continuity of symptomatology regarding his low back condition to be credible. His statements have been consistent with each other, his service records, and post-service treatment records. The Veteran has maintained consistently that he has experienced low back pain since service. Resolving all reasonable doubt in favor of the Veteran, the Board finds that his diagnosed lumbar spine disabilities, characterized as lumbar strain and degenerative disc disease, are related to his complaints during his military service and thus onset therein. As the Board finds that the criteria for service connection for this disability have been met, service connection for a low back disability characterized as lumbar strain and multilevel degenerative disc disease is granted. A neck disability The Veteran contends that he developed a neck condition during his active service. The evidence of the record establishes that he has been diagnosed with a cervical strain. See January 2020 VA Examination Report; Private Medical Records. Regarding an in-service injury or event, the Veteran reports that he was involved in a motor vehicle accident while on active duty. He asserts that the military police (MP) who arrived after the accident stated that he was not going to issue any tickets because the Veteran had his tailgate down. The Veteran explained that, other than the documentation regarding his truck repairs, he does not believe that there is any record of the incident. The Veteran submitted an October 1995 damage report which details the damages to his truck as well as the costs of repairs. Also, the Board acknowledges that October 1995 would be within the period of the Veteran’s active service. Further, the damages noted included the rear step bumper and the tailgate. See July 2019 Correspondence. Moreover, the service treatment records show that, in August 1994, the Veteran complained of a bump on the back of his neck, which was noted to have been present for two weeks. He denied any pain but stated that the right bottom side of his head was sore. The Veteran also reported that he felt tightness in his neck when he turned his neck to the left side. Regarding whether there is a nexus, the January 2020 examiner opined that it was less likely than not that the Veteran’s cervical strain was incurred in, or caused by, his service. The examiner stated that the medical records did not document treatment, injury, or diagnosis of a neck condition during service. The examiner acknowledged the Veteran’s reports of a rear-end motor vehicle accident during service but stated that the records did not document treatment for neck complaints concurrent with such an accident. However, the examiner noted that the Veteran’s neck pain appeared to have resulted from his jumping off a rope into a river. The examiner continued that further complaints of neck pain are not found until January 2016. The January 2020 examiner’s basis for the negative nexus opinion was due to the absence of in-service treatment records noting complaints of the incident. The Board notes that the absence of medical documentation is not an absolute bar to entitlement to service connection. Additionally, the examiner did not consider or address the August 1994 notation regarding the bump on the Veteran’s neck and his complaints of soreness and tightness, or the Veteran’s assertions regarding experiencing neck problems since his service. Therefore, the Board assigns low probative weight to this opinion. As explained previously, competent and credible lay evidence may serve to establish a nexus. See Davidson, supra. In this matter, the Veteran has continuously and consistently asserted experiencing neck pain since his active service. Indeed, he has always maintained that he was involved in a motor vehicle accident during active service and experienced neck pain since then. He also reported being involved in the motor vehicle accident when seeking treatment post-service. An October 1995 damage report documents damage that was done to the Veteran’s truck, which included damages consistent with the Veteran’s report of the accident. After a thorough consideration of the evidence above, the Board finds the Veteran's statements and testimony as to onset and continuity of symptomatology regarding neck condition to be credible. His statements have been consistent with each other, his service records, and post-service treatment records. The Board observes that the Veteran's accounts of his symptoms during and after service, when considered in tandem with the symptoms and diagnosis identified in the treatment records and VA examination, raise a reasonable doubt as to the initial onset of his neck condition. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Resolving all reasonable doubt in favor of the Veteran, the Board finds that his neck condition is related to his military service. 38 C.F.R. § 3.303(d). Accordingly, the Board determines that the criteria for service connection have been met, and entitlement to service connection for a neck condition characterized as a cervical strain is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.