Citation Nr: 21065618 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-67 769 DATE: October 26, 2021 ORDER Entitlement to service connection for a lumbar spine disability is granted. INTRODUCTION The Veteran served on active duty from February 1970 to September 1971. In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. FINDING OF FACT The Veteran's lumbar spine disability is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Factual Background and Analysis The Veteran seeks service connection for a lumbar spine disability, which he contends originated in service. The medical evidence from the Cincinnati VAMC confirms the Veteran currently has lumbar joint and disc disease, status-post discectomy. The central issue that must be resolved at this time is whether the Veteran's current disability originated during service or is otherwise related to service. Initially, the Board notes the Veteran's service treatment records show his spine was assessed as normal at the time of his November 1969 entrance examination. Though his records do not document an injury to his back in service, the RO has determined that several of his STRs were destroyed. In light of the absence of the STRs, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (the Board has a heightened duty in a case where the service treatment records are presumed destroyed). In this respect, the Board finds the Veteran has competently reported his injury in service, following a collapse of his bunker. Additionally, he has provided copious supporting documentation and accounts from his spouse and two fellow service-members that witnessed the event. By way of an April 2014 VA examination the Veteran was again diagnosed with lumbar spine degenerative joint and disc disease. However, the examiner determined the Veteran's back disability was less likely than not incurred in or caused by service, because the examiner found a lack of chronicity of care following his in-service injury. Nonetheless, the Board finds the examiner's findings are both unsupported by the record and have been expressly called into question. Further, the examiner wholly failed to acknowledge or discuss the Veteran's lay reports in his medical opinion. Examiners simply are not free to ignore a veteran's statements related to lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Notwithstanding the medical opinion provided by the April 2014 VA examiner, the Board also notes a medical opinion provided by the Veteran's treating primary care physician at the Cincinnati VAMC. In his March 2021 report, the clinician indicated he had treated the Veteran for roughly 6 years, and during that time the Veteran had been a very credible historian of his back injury. The clinician went on to find the Veteran's disability was as likely as not related to his in-service injury, based on the facts and circumstances of his medical history. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). Here, the Veteran has reported that he experienced ongoing back pain following his in-service injury. The Board finds the Veteran competent to report his experiences. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. Further, the Board finds the Veteran's own reports of ongoing pain to be highly probative, as the Veteran is indeed the only person truly capable of such observation. Moreover, the Board finds no reason to doubt his veracity. Additionally, the Veteran has provided a letter from his treating physician of many years, who has also concluded the Veteran's current lumbar spine disability is consequentially related to his in-service injury. In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran's currently diagnosed back disability and his in-service injuries is at least in equipoise with the evidence against a nexus. Therefore, the Veteran is entitled to service connection for his lumbar spine disability. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.