Citation Nr: 21069970 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-50 544 DATE: November 22, 2021 THE ISSUE Entitlement service connection for a lumbar spine disability. ORDER Entitlement service connection for a lumbar spine disability is granted. FINDING OF FACT The evidence is at least in equipoise that the Veteran's lumbar spine disability is related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to February 1971 and from November 1976 to November 1980, with additional reserve service. This matter was previously before the Board in November 2018, at which time it was remanded for further development. 1. Entitlement service connection for a lumbar spine disability is granted. The Veteran contends that he underwent a pilonidal cystectomy and suffered a motor vehicle accident in service, and that either of these events resulted in his current lumbar spine disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence, which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran's particular disability is the type of disability for which lay evidence may be competent. A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service treatment records (STRs) show that the Veteran underwent a pilonidal cystectomy under spinal anesthesia, and that he complained of back pain while in service, including after a motor vehicle accident. See August and September 1977 STRs; see also June and July 1980 STRs. However, subsequent reserve STRs show the Veteran denied recurring back pain. See April 1985 STR. A VA medical treatment record from October 2007 recorded an MRI of the spine, which revealed degenerative changes of the spine. Additionally, a March 2008 VA examination recorded that the Veteran believed his back pain was due to his service-connected bilateral knee disability. The examiner rendered a negative nexus opinion as to a secondary theory of entitlement. In April 2008, VA denied the Veteran's claim for service connection for a lumbar spine disability. The Veteran filed a petition to reopen his claim for service connection in February 2012. In a subsequent May 2012 statement, the Veteran specifically stated that he was not appealing the denial of his low back disability as secondary to his service-connected left and right knee disabilities, but seeking direct service connection based on his pilonidal cystectomy in service. In May 2012, the Veteran submitted a letter from a private physician, dated 1999, which indicated that the Veteran's low back pain resulted from his injuries sustained while working for the postal service in 1996 and 1998. The Veteran was provided a VA examination in July 2013. The examiner provided the opinion that the Veteran's low back disability is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the rationale that there is no continuum of care from 1977-1979. No further rationale was provided. In November 2018, the Board reopened the Veteran's claim for a low back disability and found that the July 2013 VA opinion was inadequate for adjudication purposes. Specifically, the Board found that the examiner's only rationale was that there is no continuum of care from 1977-1979. The Board observed that when the "sole premise" of a medical conclusion is the "lack of notation or treatment" of claimed injuries or symptoms it is inadequate for rating purposes. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Additionally, the Board found that the examiner did not address the in-service complaints of back pain, and remanded the matter in order to afford the Veteran a new VA opinion which also addressed the Veteran's contentions in the September 2013 Notice of Disagreement (NOD). The Veteran was afforded a new VA examination in September 2019. The examiner opined that the Veteran's back conditions, including spinal stenosis, compression fracture, and degenerative arthritis, were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that "in medical terms, a pilonidal cystectomy would never cause degenerative arthritis" and concluded that "there is no... evidence in the medical record" to support the proposition that the degenerative arthritis was incurred in service. With regards to the spinal stenosis, the examiner noted that the Veteran had an MRI of the lumbar spine which showed spinal stenosis, which was "congenital" and "which certainly predates his military career." Moving to the compression fracture of the spine, the examiner did not provide any rationale, other than stating "there is no... evidence in the medical record." The examiner also indicated that radiculopathy of the lower extremities was present, and opined that such disabilities were "more than likely related to the Veteran's military service." In explanation, the examiner stated that the Veteran was administered spinal anesthetic prior to his pilonidal cyst surgery, and that symptoms of radiculopathy often develop after spinal anesthetic, which the records show the Veteran complained of. Finally, the Veteran submitted a private examination and opinion from Dr. P.C. in October 2021. After an exhaustive history of the Veteran's low back injury, including in-service and post-service treatment records and VA examinations, the private physician opined that the Veteran's lumbar spine disability was at least as likely as not related to his back injury in service. Dr. P.C. provided extensive research on lumbar spine stenosis and addressed the September 2019 VA examiner's finding that the Veteran's lumbar spine stenosis was "congenital" and "certainly predates his military career." He explained that this finding appeared to be based on a notation in the 2009 lumbar spine MRI, but indicated that there was "nothing in [the Veteran's] history or even [the MRI report] is consistent with congenital lumbar spinal stenosis (CLSS). CLSS does not manifest at only one level as documented in this report." The physician went on to explain that multiple medical records regarding the spine, including an October 2007 MRI, failed to mention congenital or developmental stenosis, and that if the Veteran truly had CLSS, it would have been found in the other MRI scans of record. The private examiner also addressed the delayed onset of the Veteran's back pain and treatment, detailing the process of "spinal degenerative cascade," which, according to the examiner, was consistent with the Veteran's injury in service. Again, Dr. P.C. cited, extensively, from medical research in support of this finding. Dr. P.C. concluding by stating: "The medical literature clearly demonstrates that an initial low back injury, just like the one suffered by [the Veteran] in service, is the proximate event which eventually leads to [degenerative disc disease] and intervertebral disc syndrome." After consideration of the entire record and the relevant law, the Board finds that service connection for the Veteran's low back disability is warranted. While the most recent September 2019 VA examiner provided a negative opinion as to direct service connection, his opinion was conclusory in nature and did not provide adequate rationale. However, Dr. P.C. provided a positive nexus opinion, linking the Veteran's current diagnosis of degenerative disc disease to his noted in-service back injury. The Board finds the October 2021 private medical opinion by Dr. P.C. to be more probative in weight, as it is competent, credible, and persuasive, and it is based on a review of the Veteran's entire medical history and is supported by an adequate rationale. Moreover, it satisfactorily addressed and neutralized the concept raised by the 2019 VA examination report that the veteran's spinal stenosis was solely congenital in nature. The Board finds that the medical opinions of record for and against the claim of entitlement to service connection for a lumbar spine disability is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for a lumbar spine disability is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, Associate 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.