Citation Nr: 21070241 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 18-48 924 DATE: November 23, 2021 ORDER Entitlement to service connection for a low back condition, to include lumbar degenerative arthritis with intervertebral disc syndrome (IVDS) (low back disability) is granted. FINDING OF FACT The Veteran's low back disability is at least as likely as not caused by or related to his active-duty service. CONCLUSION OF LAW The criteria for service connection for low back condition, to include lumbar degenerative arthritis with IVDS, have been met. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to September 1970, and from April 1972 to November 1973. In September 2019, the Board denied the Veteran's claim for entitlement to service connection for a low back condition. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). As a result, the Court issued a Memorandum Decision, in which the Court vacated the Board's denial of this issue and remanded this appeal for further proceedings consistent with the Memorandum Decision. Specifically, the Court remanded this appeal in order for the Board to evaluate the Veteran's lay statements and address the need for a medical examination under Miller v. Wilkie, 32 Vet. App. 249 (2020), and Smith v. Wilkie, 32 Vet. App. 332 (2020). In the present case, the Veteran made lay statements with respect to suffering from continuous back symptoms since his separation from service. In the September 2019 Board decision, the Board relied on a July 2018 VA medical opinion. In this VA medical opinion, the VA examiner opined that the Veteran's low back condition was less likely than not related to his service. Significantly, the VA examiner did not discuss the Veteran's lay statements about the continuity of symptoms since his separation from service. Given such, the Court found that the Board erred in rejecting the Veteran's lay statements and relying only on VA medical opinions, which did not consider the Veteran's lay statements. In Miller, the Court held that the duty to assist requires an examiner to "address the veteran's lay statements to provide the Board with an adequate opinion," in part because "medical opinions can inform credibility findings. 32 Vet. App at 260. Applying Miller, the Court explained in Smith, that because "medical opinions can inform credibility findings, the duty to assist may require the Board to obtain a medical examination before assessing the credibility of lay evidence." 32 Vet. App. at 340. 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; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service 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 seeks service connection for a low back condition, which he relates to his service. With respect to the first element of service connection, a current disability, in a August 2015 VA examination report for back conditions, the VA examiner noted diagnoses of degenerative arthritis of the spine and IVDS. Thus, the first element of service connection is satisfied. With respect to the second element of service connection, in-service incurrence, the Veteran's service treatment records reflect that on June 20, 1972, the Veteran reported an accident and complained of low back pain. In a June 27, 1972 record, the Veteran reported involvement in an accident in which he suffered a back injury. The examiner noted it appeared to be muscular in involvement and assigned five days of light duty. Also, on July 26, 1973, the Veteran was treated for a back injury. Thus, the second element of service connection is satisfied. Therefore, the dispositive issue in this case is with respect to the third element, a causal relationship, i.e., nexus between the claimed in-service disease or injury and the current disability. The Board finds that the competent evidence of record reflects that the Veteran's low back disabilities are at least as likely as not resulting from a disease or injury, incurred in or aggravated by active service. Here, the Veteran contends that since his separation from service, he has continued to suffer from back pain. The evidence supports continued treatment and care as in a January 2007 private medical opinion, the examiner noted that he has treated the Veteran for the past 30 years, during which the Veteran has suffered a lower back problem that flares up about eight times a year. In a June 2018 VA examination report, the VA examiner also noted diagnoses of degenerative arthritis of the spine and IVDS. The examiner noted that the Veteran had two in-service injures involving his back. In an associated June 2018 VA medical opinion, after reviewing the Veteran's claims file, the examiner opined that the Veteran's low back disabilities are at least as likely as not related to his service. The VA examiner explained that the Veteran had no back problems prior to his entry to service. The onset of the Veteran's condition was during service, documented in his service treatment records. The examiner noted that the records reflect evidence of current, chronic, and continuous treatment and care. Given such, the examiner concluded a nexus has been established between the Veteran's back disabilities and his service. The Board acknowledges that the record contains other VA medical opinions that provide negative nexus opinions. However, as outlined by the Court in the Memorandum Decision of record, those VA medical opinions did not consider the Veteran's lay statements of continuity of symptoms since his separation of service. Given such, applying the Court's rulings in Miller and Smith, the Board finds that without consideration of the Veteran's lay statements, the other VA medical opinions of record, are inadequate. Resolving reasonable doubt in the Veteran's favor, entitlement to service connection for a low back disability is warranted. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.