Citation Nr: 21070852 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-23 337 DATE: November 26, 2021 ORDER Entitlement to service connection for a low back disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his low back disability is at least as likely as not related to his service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1988 until January 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 Department of Veterans Affairs (VA) regional office (RO) rating decision. The Veteran participated in a hearing before the undersigned in March 2020; a transcript is associated with the claim file. The Board remanded this claim in May 2020 to obtain a VA examination. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Entitlement to service connection for a low back disability The Veteran contends that his low back disability is related to service. Resolving all doubt in the Veteran's favor, the Board agrees. As discussed in the March 2020 Board decision, the Veteran's post-service treatment records show that he is diagnosed with spondylosis and degenerative disc disease. Therefore, the first Holton element is met. Furthermore, as discussed by the March 2020 Board decision, the Veteran's service treatment records from September 1993 show that he was treated for trauma involving a vehicle in September 1993 and was diagnosed with musculoskeletal strain. Therefore, the second Holton element is met. The remaining determination is whether there is a link between the two. At an April 2021 VA examination, the VA examiner diagnosed the Veteran with degenerative disc disease, intervertebral disc syndrome, cervical and lumbar radiculopathy, and spondylosis. The Veteran also reported his in-service tank accident to the VA examiner and that his back pain has persisted ever since. The examiner, however, opined that the Veteran's low back disability was less likely than not related to service. The examiner reasoned that the Veteran's service treatment records were "silent" concerning treatment for back pain or a back injury. In a June 2021 addendum VA medical opinion, the VA examiner added that the Veteran's and other buddy statements regarding continuity did not change the nexus opinion. The examiner stated that there was "no official record of the incident," and that there is "no mention of treatment for back pain." In support of the claim, the Veteran submitted a July 2021 private opinion from his treating physician. Therein, the private examiner stated that the Veteran has several significant low back disabilities; the examiner also noted the Veteran's in-service tank accident. The examiner opined that this in-service tank accident "resulted in trauma and limited use of his body." The examiner concluded that "it is a greater chance that his back and spine injuries were caused by this time in service accident." Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's low back disability is related to service. First, the July 2021 private opinion is based on a familiarity with the Veteran and course of treatment for this back disability. Black v. Brown, 10 Vet. App. 279 (1997). Therein, the private examiner stated that "it is a greater chance" that his in-service tank accident "resulted in trauma and limited use of his body," to include his current low back disabilities. Second, the Board finds that the Veteran and his buddy statements, as lay persons, are competent to testify to his back pain during service and consistently thereafter. See Layno v. Brown, 6 Vet. App. at 470. There is no reason to doubt their credibility. The Board cannot afford the VA examinations much probative weight as they are based on an incorrect factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Specifically, the VA examiner stated that the Veteran's service treatment records were "silent" concerning treatment for back pain or a back injury. However, as identified above, the Veteran's service treatment records do show that he was treated for trauma involving a vehicle in September 1993 and was diagnosed at that time with musculoskeletal strain. In sum, the Board concludes that the evidence is at least in relative equipoise as to whether the Veteran's low back disability was caused by service. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor to the Veteran, entitlement to service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.