Citation Nr: 21068903 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 18-47 395 DATE: November 15, 2021 ORDER Service connection for lumbar degenerative disc disease is granted. Service connection for a coccyx injury is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his lumbar degenerative disc disease is at least as likely as not related to service. 2. Resolving reasonable doubt in the Veteran's favor, his coccyx injury is at least as likely as not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar degenerative disc disease are met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for lumbar degenerative disc disease are met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2007 to September 2011. He is a combat Veteran (as evidenced by his Combat Action Ribbon), and a Purple Heart recipient. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a virtual teleconference hearing in April 2021. A transcript is of record. The Veteran's March 2016 notice of disagreement was originally deemed to be untimely (see April 2016 correspondence to the Veteran). The RO issued a June 2017 rating decision in which it found that no new and material evidence had been received to reopen the Veteran's claim for a lumbar strain. However, in a January 2018 deferred rating decision, the RO noted that the letter sent to the Veteran was clearly and unmistakably erroneous, and that the March 2016 notice of disagreement had been timely filed. Consequently, in its July 2018 statement of the case, the RO readjudicated the claims on a de novo basis. The Board will do likewise. Service connection for lumbar degenerative disc disease is granted. The Veteran contends that he incurred an injury to his low back during service and that his current disability is due to that injury. During the April 2021 hearing before the undersigned, he testified that he injured his back as a result of multiple improvised explosion devices (IEDs) while serving in Afghanistan. He also indicated that he wore heavy combat gear and carried about 150 pounds of weight, and was frequently jostled about while riding over rough terrain. The Veteran further testified that he continued to experience back pain since military service. When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service." 38 U.S.C. § 1154(b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). The Board concludes that the Veteran has a current disability that is related to an in-service injury. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment records reflect that the Veteran has a current diagnosis of degenerative disc disease with L4-L5 and L5-S1 disc bulges shown on a July 2020 MRI. Thus, the question becomes whether the current disability is related to service. On this question there are nexus opinions in favor of and against the claim. The evidence against the claim includes a March 2015 VA opinion in which the examiner noted that the Veteran reported back pain on a February 2011 post deployment health assessment and again upon separation from service. She also noted that the Veteran denied back pain on a July 2011 DD Form 2807-1. She found that the Veteran's back disability was less likely than not due to service. Her rationale was that the service treatment records were silent for actual treatment of a back disability. The evidence in favor of the claim includes an April 2021 private opinion provided by Dr. J.A.F. Dr. J.A.F. noted that the Veteran was involved in two IED blasts (for which he received a Purple Heart) as well as two motor vehicle accidents. The Veteran completed a February 2011 Post-Deployment Health Re-Assessment in which he stated that his overall health was worse than it was prior to the deployment, and that he had back pain. Additionally, he noted that the Veteran began treating with a chiropractor in May 2013 (20 months after discharge from service). He opined that the Veteran's lumbar spondylosis is due to service. Dr. J.A.F. indicated that he reviewed the claims file, and he provided a detailed and cogent rationale to support his nexus opinion. For this reason, his opinion is persuasive. The Board finds the competent and most probative medical evidence, the opinion from Dr. J.A.F., supports a causal nexus between the Veteran's currently diagnosed degenerative disc disease and his military service. Accordingly, service connection for degenerative disc disease is warranted. Service connection for a coccyx injury is granted. The Veteran contends that he experienced an injury to his coccyx during service and that his current disability is due to that injury. The Veteran testified before the undersigned that he continued to experience pain in his tailbone since he was involved in a jet ski accident in August 2011, shortly before leaving service. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1154(b), 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran's DD 214 reflects that he was discharged from service on September 5, 2011. Post-service treatment records reflect that the Veteran sought treatment on September 20, 2011. He reported that he injured his coccyx three weeks earlier when he fell off of a jet ski. He was assessed with a fractured coccyx. Thus, the question becomes whether the current disability is related to service. On this question there are two probative opinions, both in favor of the claim. The evidence in favor of the claim includes a February 2015 VA opinion in which the examiner noted the September 2011 treatment report and opined that it is at least as likely as not that the coccyx fracture occurred within one year of leaving military service with residual pain. The evidence in favor of the claim also includes an April 2021 private opinion provided by Dr. J.A.F. He noted that the Veteran was noted to have a hairline fracture in August 2011. He opined that the Veteran's current disability involving his coccyx was incurred during military service. Dr. J.A.F. reviewed the Veteran's claims file and also provided a detailed and cogent rationale to support his nexus opinion. For this reason, his opinion is persuasive. The preponderance of the competent medical evidence establishes that the Veteran's current coccyx disorder arose in service. Accordingly, service connection for a coccyx injury is warranted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Prem, 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.