Citation Nr: A21017686 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 190729-23813 DATE: November 2, 2021 ORDER Service connection for lumbosacral strain is granted, subject to the laws that govern the payment of monetary benefits. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the probative medical evidence shows that the Veteran's lumbosacral strain had its onset in service. CONCLUSION OF LAW The criteria for service connection for lumbosacral strain are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 1967 to April 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was provided with a hearing before the undersigned Acting Veterans Law Judge (VLJ) on June 2021. A copy of the transcript is of record and has been reviewed accordingly. Procedurally, the Veteran filed a claim for service connection in January 2015 and such was denied in a July 2015 rating decision. The Veteran appealed that decision in October 2015 in the legacy system. A statement of the case (SOC) was provided in June 2016 and the Veteran perfected his appeal in July 2016, in which he requested a hearing before the Board. While awaiting a hearing, the Veteran opted into the Appeals Modernization Act (AMA) in May 2018 and, thus, his appeals stream was transferred to that system, where he requested a Higher Level Review, that was provided in September 2018. The Veteran then appealed that decision under a Hearing by the Board election under the AMA in July 2019. It is noted that the Hearing election allows for the submission of additional evidence in support of an appeal within 90 days of the hearing. Therefore, any additional evidence submitted during that time period shall be considered accordingly. 38 C.F.R. § 20.302. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). Service connection may also be warranted for any disease diagnosed after discharge, 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). 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. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such service as shown by the service record, the official history of each organization in which the Veteran served, his or her treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154 (a). Here, the Veteran contends that he experienced a lower back disability that was a result of his duties carrying a heavy boiler upstairs while serving in the Navy. A review of the Veteran's service treatment records shows that he was seen for treatment in January 1969 and February 1969 with reports of longstanding low back pain over a period of a month. The Veteran was diagnosed with chronic low back pain syndrome. A July 2021 lay statement from the Veteran's stepbrother indicated that the Veteran was seen reporting low back pain ever since he left service, particularly when they were working together. A review of the Veteran's post-service outpatient treatment records shows that he has been variously followed for lower back symptoms since leaving service to present. In November 1984 and December 1984, the Veteran was seen for low back reports which, although attributed to a November 1984 accident, do not necessarily negate that the Veteran had pre-existing low back pain that led to or was exacerbated by that accident, as it was not indicated that the accident was the exclusive cause. He was diagnosed with scoliosis and a herniated disc at L4-5. The Veteran was provided with a VA examination in April 2015. The examiner diagnosed the Veteran with lumbosacral strain and degenerative arthritis of the lumbar spine. An examiner, who appeared to be a different provider than the examiner who conducted the objective examination, opined that the Veteran's current lumbosacral strain was as least as likely as not the result of the in-service lower back pain syndrome. It is provided that accepted medical knowledge supports that such longstanding chronic low back pain can contribute to the development of lumbosacral strain. In July 2015, the examiner who provided the objective examination rendered an addendum opinion finding that the Veteran did not have a current disability of lumbosacral strain and that there was no continuity of his current back reports to military service due to a substantial gap in the treatment history. The Veteran also provided an October 2019 opinion (received in June 2021) from his private doctor, who has provided treatment for the Veteran's reports of chronic low back pain since the 1970's, shortly after the Veteran left military service. The examiner opined that the Veteran's current back pain disability is as least as likely the result of his in-service injury and reports of chronic back pain. Based upon the above findings, the Board finds that the Veteran is entitled to service connection for his lumbosacral strain. He has shown the presence of a current disability, via the April 2015 VA examination diagnosis of lumbosacral strain, and there is in-service treatment for chronic lower back pain syndrome. The April 2015 VA opinion found that there is support in existing medical knowledge for the relationship between the Veteran's low back pain syndrome seen in military service and the development of lumbosacral strain presently. Furthermore, the Veteran's private doctor confirmed that the Veteran has continually experienced pain in his lower back since leaving military service to present and that the Veteran's description of his initial injury in conjunction with the documented medical treatment seen in January 1969 and February 1969 make it likely that his current reports of symptoms are the result of such injury. The only evidence against a finding of nexus was presented via the July 2015 VA examination addendum opinion. That opinion, however, is afforded lower probative value, as it appears to be based upon an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value). This is namely that the Veteran did not have any lower back reports from service until present. However, as discussed above, evidence from the Veteran's private provider indicated continual treatment for back symptoms over the period of decades since leaving military service. Additionally, as it appears that the July 2015 VA examiner appears to have worked in tandem with the April 2015 VA examiner, but it is unclear as to which specific portions of that examination were conducted by whom. The Board cannot tell if the July 2015 VA examiner actually diagnosed lumbosacral strain in the first instance and then later changed her mind in the addendum opinion, as such is not clearly indicated. As such, the finding that the Veteran does not have a currently diagnosed lumbosacral strain is also afforded lower probative value, as the objective examination in which one examiner or the other appears to have rendered the diagnosis appears to be in order and there is no reason to otherwise doubt the diagnosis provided on April 2015 in light of the information obtained during that objective examination. Nonetheless, at the very least there is an equitable balance of opinions for and against a finding of a current disability of lumbosacral strain and nexus to military service. Therefore, because there are a least a balance of positive and negative nexus opinions available, the evidence at the very least is in equipoise. Accordingly, a basis upon which to establish service connection for lumbosacral strain has been presented. The appeal for service connection for lumbosacral strain is granted. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.