Citation Nr: 21068378 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-25 731 DATE: November 10, 2021 ORDER Entitlement to service connection for low back disability is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's diagnosed low back degenerative joint disease had its onset in service or is etiologically related to his active service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1962 to August 1966. This matter comes before the Board on appeal from an August 2012 rating decision. The Veteran testified at a Board hearing in March 2017, and in November 2018, the Board remanded the claim for further development. In an October 2020 decision, the Board denied the claim and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) which, in an August 2021 Order, vacated and remanded the issue for action consistent with a Joint Motion for Remand (Joint Motion). Service Connection Service connection may be granted for a disability resulting from a 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Entitlement to service connection for low back disability The Veteran asserts that he injured his back on active duty and that his currently diagnosed degenerative joint disease is a result of the in-service back injury. Specifically, the Veteran reports that he slipped in some water on the stairs and hit his back. A review of the Veteran's treatment records show that on June 11, 1965 the Veteran was seen for complaints of hip pain secondary to being hit in the back. In support of his claim, the Veteran submitted an August 2015 notarized statement from G. B., the medical assistant who assisted the Veteran's prior physician during the 1970's and 1980's. In the August 2015 statement, G. B., who is now also known to be the Veteran's ex-spouse, attested to the Veteran's back issue and treatment for back pain from the 1970's through the 1980's. During the March 2017 Board hearing, the Veteran testified he sought treatment immediately after the fall due to the pain. He stated that the medic didn't write anything down, gave him some aspirin, and told him to return if his back got worse. The Veteran also said he didn't report back pain at separation because the pain was managed with medicine. A May 2019 VA back examination report shows a diagnosis of degenerative arthritis of the spine and degenerative disc disease. The Veteran reported that he injured his back in service during a fall and he has noticed a gradual deterioration of the condition since then. The VA examiner opined it was less likely than not the Veteran's back disability was incurred in or caused by the claimed in-service injury, event, or illness. The rationale acknowledged the Veteran's assertions regarding the in-service fall, the June 1965 STR note for complaints of hip pain secondary to a hit in the back, and the August 2015 certified statement from G. B., indicating the Veteran sought treatment for his back from a private provider in the 1970's and 1980's. The examiner also noted that the Veteran's July 1966 separation examination showed no complaints of back pain. The examiner further stated there are three key points that make it difficult to establish a nexus without resorting to speculation. First, the examiner stated there is no contemporaneous record regarding a back injury and the separation examination was absent any complaints of recurrent back pain or other symptoms consistent with a back injury. The second point the examiner stated was a lack of continuity of symptomatology, stating there is no record of treatment within one year of separation and through the rest of the 1960's. The examiner stated the third point is that there is a viable explanation for the Veteran's back condition outside of military service given his occupation working manual labor in various factories and mills for several decades following separation from service. As shown above, the evidence reflects a current diagnosis of a back condition and an in-service injury. Regarding the Veteran's assertions he has experienced back disability symptoms in service and following service, the Board finds the Veteran competent and credible to report the onset of symptoms of that disability, specifically pain. Furthermore, the Board finds the Veteran is competent and credible to report the continuation of symptoms of that disability. See Charles v. Principi, 16 Vet. App. 370 (2002); see also Caluza v. Brown, 7 Vet. App. 498. Likewise, the Board finds the Veteran's ex-spouse G. B. competent and credible to report what she saw and knew about the Veteran's back pain and treatment in the 1970's and 1980's as they were in a relationship at that time. Turning to the medical opinion of record regarding the etiology of the Veteran's low back disability, the May 2019 VA examiner provided a negative opinion. The examiner further stated there were three key points that made it difficult to establish a nexus without resorting to speculation the lack of contemporaneous documentation, lack of continuity of symptoms, and other viable explanations for the current back condition. Nonetheless, the examiner opined it was less likely than not the Veteran's current low back disability was related to service. The Board has the responsibility of determining the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Although the May 2019 VA examiner found the Veteran's low back disability unrelated to service, the Board finds the opinion to be of diminished probative value. The examiner failed to consider the competent and credible evidence of the Veteran's report of the onset of his low back disability symptoms in service, and the continuation of those symptoms in the years since. Turning to the question of whether there is a nexus, or link between the current diagnosed disability and service, the evidence is at least in equipoise as to whether the Veteran's low back disability had its onset in service. Although there is no medical nexus opinion of record linking the Veteran's current diagnosis of low back disability to his active service, the lack thereof is not dispositive. The Board has considered whether the Veteran has presented a continuity of symptomatology associated with his low back disability and finds that he has done so. The Veteran's credible statements regarding his in-service injury and resulting low back disability symptoms since service separation are competent evidence as to factual matters of which he has first-hand knowledge and the present of observable symptoms; they are given great probative weight. The evidence reflects the Veteran experienced low back disability symptoms in service and there have been continuous symptoms since service separation. The Veteran has been diagnosed as having a low back disability. When weighing the evidence of record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current low back disability is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a low back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.