Citation Nr: A21017174 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 190207-3422 DATE: October 25, 2021 ORDER Entitlement to service connection for a lumbar spine disability is granted. FINDING OF FACT The Veteran's lumbar spine disability began in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2002 to May 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). A rating decision was issued under the legacy system in March 2017. In July 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The agency of original jurisdiction (AOJ) issued a RAMP HLR decision in November 2018, which is the decision on appeal. On February 6, 2019, the Veteran submitted a RAMP Selection form, electing the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the RAMP opt-in, as well as any evidence submitted by the Veteran or their representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Entitlement to service connection for a lumbar spine disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran alleges that the lumbar spine disability began during service and has existed since that time. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). March 2013 private treatment records PTRs note central disc herniation at L4-5 and left lower leg radiculopathy. October 2015 VA treatment records found an impression of lumbar spondylosis. An April 2017 private medical opinion indicates that the Veteran underwent a lumbar laminectomy. And an April 2018 VA examination found a history of L4/5 bulging/herniation status post lumbar laminectomy, fasciectomy, and discectomy. Accordingly, the first element of service connection is met. Second, the Board finds that there was an in-service event or injury. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A careful review of the Veteran's service treatment records (STRs) does not reveal any complaints of or treatment for back pain. August 2006 STRs note that the Veteran denied back pain post deployment. April 2007 STRs indicate no back pain. A June 2008 report of medical examination found the spine to be normal, and the Veteran denied recurrent back pain or any back problems on the corresponding report of medical history. The same findings were reported at separation as well. However, in an April 2017 statement, and at the July 2021 Board hearing, the Veteran explained that they did not report their back pain, asserting that there is a stigma in the military regarding weakness in women serving, and because they had already come close to being separated from service for not meeting weight standards. The Veteran stated that their chain of command had to go to bat for them, so they did not want to rock the boat. The Veteran reported that they turned things around, became an exemplary model of physical fitness, and began teaching physical fitness classes after as a command fitness leader, which required a great deal of lifting weights and cardiovascular exercise. The Veteran asserted that their low back pain began around this time. Additionally, the Veteran reported that their military occupational specialty (MOS) was a hospital corpsman and surgical technician, which involved a lot of lifting patients and heavy equipment. The Veteran stated that the pain started as a dull ache, and became more constant. They reported that their last day of service was their first day of nursing school, and that while they tolerated the pain during their first year of school, by the time they graduated in 2012 it was so severe that at the end of the school day they would be limping to the car. The Veteran's DD-214 confirms that their MOS was a surgical technologist. A review of the Veteran's military personnel records finds a July 2006 Evaluation and Counseling Report, which indicated that the Veteran was below standards for the category entitled Military Bearing Character. This category noted consistently unsatisfactory appearance, poor self-control, conduct resulting in disciplinary action, unable to meet one or more physical readiness standards, and fails to live up to one or more Navy core values. The report also indicated that the Veteran failed the fall 2005 physical fitness assessment due to the body composition assessment. A July 2008 Evaluation and Counseling Report however found that the Veteran was a leader in physical fitness, and had scored outstanding on the most recent physical fitness assessment. The examiner opined that the Veteran was the obvious choice for the most demanding jobs, and was the most deserving of retention and promotion. This confirms the Veteran's reports regarding almost being separated from service for their physical fitness, and that they had eventually managed to become a leader in physical fitness. The Board finds these statements competent as they are capable of lay observation. 38 U.S.C. § 1154(a); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). The Board finds these statements credible as they are corroborated by the Veteran's military personnel records. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Accordingly, the second element of service connection is met. Third, the Board finds that the evidence of record does support a finding that the lumbar spine disability is related to active service. The Veteran submitted an April 2017 private positive nexus opinion. The Veteran's private physician opined that the lumbar spine disability was more likely than not due to their duties in the Navy. The examiner explained that lifting heavy equipment, moving and lifting patients, and high intensity physical fitness training on a daily basis for over 8 years of service appears to have greatly contributed to the herniation of the disc from L4 to L5. The examiner also noted that the Veteran still has lasting effects from the lumbar spine surgery, including daily low back pain, difficulty exercising and trying to lose weight, tenderness to palpation, and occasional difficulty with proprioception of the left foot. The RO obtained a VA negative nexus opinion in April 2018 where the examiner explained that the STRs are silent for any back issues, and that the Veteran denied back pain at separation. The examiner further noted that there is no medical documentation to indicate that the Veteran sought care for a back condition within a year following separation, and that outpatient medical reports indicate 2012 as the date of onset. The examiner concluded that a nexus could not be established. The Board affords the April 2017 private nexus opinion great probative value. It is supported by well-reasoned rationale and careful consideration of the Veteran's assertions regarding in-service back pain and continuity of symptomatology. Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board affords the April 2018 VA medical opinion low probative value as it relies entirely on a lack of medical records as their reasoning, and did not address the Veteran's lay statements. A medical opinion based solely on the absence of documentation in the service treatment records or that fails to take into account lay statements is inadequate. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner's opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Accordingly, as the preponderance of the evidence is in the Veteran's favor, service connection for a lumbar spine disability is granted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.