Citation Nr: 21071357 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-61 063 DATE: November 30, 2021 ORDER Service connection for a lumbar spine disorder is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the evidence is at least in equipoise that the Veteran's lumbar spine disorder is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from June 1999 to June 2004. This matter comes before the Board of Veterans' Appeal (Board) on appeal from an April 2016 rating decision by the Regional Office (RO). In August 2021, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence 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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The Board must also 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 evidence 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for a lumbar spine disorder. The record shows that the Veteran has been diagnosed with a lumbar spine disorder. See March 2016 VA Examination. Such is sufficient to meet the requirement of a present disability. The Veteran's service treatment records (STRs) show that in March 1999, the Veteran suffered a lower back injury while playing basketball and was subsequently diagnosed with a muscle strain. Therefore, the second element for establishing service connection, i.e., service incurrence, is established. As will be explained in further detail below, the Board finds that the evidence of record reasonably establishes that a nexus exists between the Veteran's in-service injury and his current lumbar spine disorder. A review of the Veteran's postservice treatment records reveals treatment for low back pain dating back to May 2008. Specifically, the Veteran's private treatment records show that the Veteran sought treatment for low back pain on nine occasions between May 2008 and March 2014. Notably, when the Veteran sought chiropractic care in March 2014, he reported having back pain for more than 10 years. See Private Treatment Record received September 2021. In February 2016, the Veteran submitted a lay statement from his spouse, J.C. She indicated that she dated the Veteran before, during, and after his service. Moreover, J.C. wrote that she remembered when the Veteran hurt his back in the Marines. Specifically, she indicated that following the Veteran's back injury, he could not "bounce back" from the injury. Additionally, she explained that the Veteran did not seek medical treatment, as he told her that it was not only frowned upon, but he was also discouraged to seek medical treatment while in the Marines. J.C. stated there were many occasions when the Veteran had been handicapped by his back injury, which limited what he could do. Further, she maintained that she had witnessed a steady decline in the Veteran's back, and while the Veteran had sought treatment for the condition, it had not helped the problem. See Statement in Support of Claim received February 2016. In February 2016, the Veteran submitted an additional lay statement from a fellow Marine, C.G. In the statement, C.G. wrote that he served on active duty with the Veteran from June 1999 to June 2004, and witnessed the Veteran's back pain and how it affected him. Despite this pain, C.G. stated the Veteran refused to seek treatment as it was frowned upon. He also reported there were times during service when the Veteran had stayed in to nurse his back while others played sports or went to clubs. C.G. also stated that the Veteran's back issue were ongoing ever since the in-service injury, but after years of getting worse the Veteran was not able to "keep going the same way." See Statement in Support of Claim received February 2016. In March 2016, the Veteran underwent a VA examination to assess the etiology of his lumbar spine disorder. During the examination, the Veteran reported that while on active duty, he sustained a basketball injury, which resulted in a back strain. Following the injury, he was treated conservatively with rest and medication and returned to regular duty; however, he indicated that following the back injury, he began suffering chronic lower back pain, which had worsened. Additionally, he reported that he had sought treatment from chiropractors in the past, since around 2005. At the time of the examination, the Veteran indicated that his symptoms consisted of aching and burning back pain that shot down both of his legs. On examination, the examiner diagnosed lumbar spine degenerative joint disease/ degenerative disc disease and a lumbar spine strain. The examiner then opined that the Veteran's lumbar spine disorder was less likely than not incurred or caused by the claimed in-service injury, event, or illness. In his rationale, the examiner explained that, while the Veteran was seen once for back pain in 2000, the record contained no evidence of ongoing or chronic back pain following that incident or within a year of service separation. Further, the examiner noted that the Veteran's service separation examination was negative for any back complaints. The examiner acknowledged that the record contained evidence of the Veteran undergoing treatment for his lower back in 2015 to 2016, but ultimately opined that the Veteran's current lumbar spine disorder was less likely than not due to or related to the Veteran's acute transitory strain in 2000. To the contrary, he held that the Veteran's current lumbar spine disorder was most likely related to postservice overuse and wear and tear after service. See March 2016 VA Examination. Despite the negative nexus opinion noted above, the Board finds that while the examiner acknowledged the lay statements of record, he did not provide an explanation for discounting the lay statements from C.G. and the Veteran's spouse, which indicated that the Veteran experienced continued symptoms of back pain following his in-service injury. Moreover, the examiner failed to discuss the private treatment records from May 2008 to March 2014, which show treatment for the Veteran's lumbar spine disorder. Lastly, the examiner provided no explanation for his conclusion that the Veteran's current lumbar spine disorder was due to postservice overuse and wear and tear. For these reasons, the Board finds the March 2016 VA medical opinion to be insufficient for rating purposes, and thus entitled to limited probative value. In September 2021, the Veteran submitted an August 2021 private medical opinion from Dr. G.P. In the opinion, Dr. G.P. wrote that he treated the Veteran in 2016 for several consultations relating to his low back pain with radiation into the lower extremities. At that time, the Veteran reported having been a Marine who sustained a low back injury in 2000. He was evaluated at that time and diagnosed with a "strained back" with symptoms similar to what he was currently experiencing. The Veteran further reported that the symptoms had persisted and eventually he underwent an MRI, which revealed some degenerative changes, spondylosis, and a large disc protrusion at L4-5 contributing to moderate spinal stenosis and likely impingement of traversing right and left L5 roots. Dr. G.P. further reported that the Veteran had been enduring pain from the date of his original injury with no record or prior treatment for that pain prior to the injury. Therefore, it was "quite evident" that the Veteran's symptoms started the date of the injury and continued forward with no prior injury, treatment, or radiographic evidence to suggest otherwise. Ultimately, Dr. G.P. opined that given the temporality of the symptom constellation in relation to the injury sustained, the Veteran's in-service injury was more than likely the causative agent for his longstanding low back and leg pain. See Private Treatment Record received September 2021. The Board finds the private physician's opinion to be highly probative as to the etiology of the Veteran's lumbar spine disorder as it was provided by a physician familiar with the Veteran's medical history, considered the lay statements of record, and was supported by an adequate rationale. Accordingly, the Board finds that the final element of service connection, the presence of a nexus between the current disability and the in-service injury has been established. (Continued on the next page) In conclusion, the Board resolves all reasonable doubt in the Veteran's favor and finds that the evidence of record reasonably establishes that his lumbar spine disorder is related to his service, and thus service connection is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Talton, John H. 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.