Citation Nr: 21073304 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 19-00 379 DATE: December 8, 2021 ORDER Entitlement to service connection for a lumbar spine condition is granted. FINDING OF FACT The most probative evidence of record establishes that the Veteran's current spine disability is etiologically related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative arthritis of the spine 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 had active duty service from January 2001 to November 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on 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 evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The law allows service connection for certain chronic diseases enumerated in 38 C.F.R. § 3.309(a) on a presumptive basis, so long as certain regulatory criteria are satisfied. When applicable, the presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [38 C.F.R. § 3.303(b)] is to relax the requirements of [38 C.F.R. § 3.303(a)] for establishing service connection for certain chronic diseases" and only applies to the chronic diseases set forth in 38 C.F.R. § 3.309(a)). Specifically, 38 C.F.R. § 3.303(b) provides that when a chronic disease is shown as such in service (or within a presumptive period under 38 C.F.R. § 3.307), then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." If the evidence is not sufficient to show that a disease noted in service was chronic at that time, then the claim may be established with evidence of continuity of symptoms after service discharge, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. See Walker, 708 F.3d at 1338; C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." Walker, 708 F.3d at 1336. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for a lumbar spine condition The Veteran contends he developed a spine disability caused by carrying heavy equipment for 12-18 hours per day as part of his duties as a combat medic in service. The Veteran stated that he also lifted and moved multiple patients while working in the hospital because the assistive devices to help lift patients was not available at the time. The diagnosis of degenerative arthritis of the spine was confirmed at the August 2019 VA examination. Thus, the current disability prong of a service connection claim has been satisfied. The Veteran's available service personnel records show that his primary specialty was a health care specialist for 13 years, 6 months. He completed multiple tours in Iraq from April 2003 to October 2008, earning numerous campaign medals and a Purple Heart. This evidence establishes that the Veteran performed the duties of a medic while participating in live combat during active service. Thus, the Veteran's lay statements concerning in-service patrols and healthcare missions are deemed to be credible because they are consistent with the facts and circumstances of his active service. Relevant to this case is whether the Veteran's current back condition can be linked to the events that occurred in service. The Veteran was afforded a VA exam in April 2018 and August 2019 to determine the nature and etiology of his spine disability. The April 2018 VA examiner opined the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale is that there was one report of back spasm in 2009, which fully resolved, with no issue after the 2009 incident. The August 2019 VA examiner noted degenerative changes on X-ray in September 2017 and herniated L5-S1 on MRI in 2018, but did not provide an opinion as to whether this disability pattern is related to an event experienced by the Veteran during service in Southwest Asia. The Board finds the April 2018 examiner's opinion to be inadequate for adjudication purposes. VA examiners should consider a Veteran's description of symptoms during and after service, Barr, 21 Vet. App. at 311, and a medical opinion that fails to consider a Veteran's lay statements and relies on the absence of contemporaneous medical evidence to conclude that there is no link between a Veteran's in-service injury and current disability is inadequate. McKinney v. McDonald, 28 Vet. App. 15, 30 (2016). Here, the April 2018 VA examiner based a negative nexus largely on a lack of supporting medical records. Furthermore, part of the examiner's rationale was based upon the premise that there was "no further issue after 2009 incident." This is a faulty premise because the Veteran's medical records show a complaint of back spasm in 2010 and degenerative arthritis in September 2017. For a VA medical opinion to be adequate, it must include consideration of the Veteran's credible lay statements, it must be based on accurate factual premises, and it must contain a rationale sufficient to support its conclusions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (explaining that a medical report without "a reasoned medical explanation" lacks probative value). At the April 2021 Board hearing, the Veteran explained that he often did not seek medical treatment because he possesses the knowledge and skill to treat his own pain. Additionally, most of the time, there was no doctor available to him as the combat medic. As such, he testified that he took Tylenol or Motrin and did stretches when he could to try to alleviate the pain. The Board concludes, at the very least, a reasonable doubt exists as to whether the Veteran's back condition was chronic in service, or otherwise related to active duty service. Both VA examiners failed to explain how degenerative arthritis, a chronic condition, can manifest within three years after discharge if not related to service. No intercurrent cause, including a motor vehicle accident in August 2017, has been identified to explain degenerative arthritis of the spine in September 2017. The fact that the Veteran was diagnosed with a herniated disc in August 2008 and had documented back pain in 2009 and 2010 strongly suggests a chronic back condition in service. (Continued on the next page) Accordingly, affording the Veteran the full benefit of the doubt, the Board finds the Veteran's spine disability is in fact related to service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Nelson, 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.