Citation Nr: 21067662 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 14-42 352 DATE: November 4, 2021 ORDER Entitlement to service connection for lumbar spine, degenerative disc disease L5-S1, and minimal spondylosis L2 -L5 (a lower back disorder) is granted. FINDING OF FACT The preponderance of the evidence reflects that the Veteran's lower back disorder is due to service or incidents therein. CONCLUSION OF LAW The Veteran's lower back disorder was incurred in service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1964 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In January 2018, the Veteran and his spouse, C. S., testified at a videoconference Board hearing before the undersigned VLJ. A copy of the transcript is of record. The issue was twice before the Board, in April 2018 and May 2020. In April 2018, the Board remanded the issue for a VA examination. In May 2020, the Board denied the claim. The Veteran appealed the denial to the U. S. Court of Appeals for Veterans Claims (Court). In February 2021, the Court granted the parties' Joint Motion for Remand (JMR) and vacated the Board's May 2020 denial. The issue was then remanded to the Board for development consistent with the JMR. In correspondence dated in October 2021, the Veteran's attorney indicated that the Veteran waived RO consideration of nexus opinion provided by Dr. V. A. F, MD., Board Certified, American Board of Orthopaedic Surgery, and Fellow, American Academy of Orthopaedic Surgery. Entitlement to service connection for a lower back disability is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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 three-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, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that he had a lower back disorder that was incurred in service and continued. During his January 2018 Board hearing, he credibly and completely testified that he had there major back injuries in service, including being body slammed into a set of lockers in 1964; tripping and falling down a set of stairs in 1964; tripping and falling over a firehose in 1966; and dodging an on-coming truck and falling into a fence in 1967. The Veteran's wife additionally testified that he had back problems since they met in 1970, and he told her back then that he had back issues since the military. In his March 2013 statement, he reported having had back problems since 1967 and seeking treatment after service. The Veteran's service treatment records (STRs) dated in June 1967 show a complaint of sharp pain in the lower back. He was diagnosed with muscle spasms. In a February 2012 statement, the Veteran reported that he had been treated for his lower back disability numerous times in service; however, it was not recorded in his STRs. Later statements of record, the Veteran additionally reported having muscle spasms since 1967 and obtaining treatment at the VA and with private clinicians. In support of his claim, the Veteran provided a Disability Benefits Questionnaire (DBQ), conducted by Dr. C. N., his private clinician, where it was noted that he reported lumbar pain and back spasms since 1967. Dr. C. N. diagnosed degenerative disc disease and osteoarthritis of the spine. In September 2019, the Veteran was afforded a VA examination. The examiner found a negative nexus to service and explained that the disabilities were diagnosed 40 years after service, and the incident of muscle spasms in service "was acute and resolved without further complaint or evaluation." The Court has since found this examination inadequate, for it failed to consider the Veteran's lay statements of continuity. Barr v. Nicholson, 21 Vet. App. 303,311 (2007); Miller v. Wilkie, 32 Vet. App. 249, 259 (2020). In October 20121, the Veteran provided a positive nexus opinion by Dr. V. A. F., MD, Board Certified, American Board of Orthopaedic Surgery, and Fellow, American Academy of Orthopaedic Surgery. Dr. V. A. F. determined that it was more likely than not that the Veteran's lumbar degenerative disc disease developed as a result of injuries during his service. Upon review, the Board affords great probative weight to the opinion provided by Dr. V. A. F., especially considering no other adequate medical opinion is of record. Dr. V. A. F. reported that for the opinion, he reviewed the Veteran's military and VA service treatment records, an interview with the Veteran and was supported by a thorough rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). A physician's review of the claims file is not the determinative factor in assigning probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). A physician should have information regarding relevant case facts. Accordingly, the Board finds that the preponderance of the evidence is in favor of service connection for a lower back disorder. 38 U.S.C. § 5107 (b) (2012). Thus, service connection is, therefore, granted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.