Citation Nr: 21073401 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-17 997 DATE: December 8, 2021 ORDER Entitlement to service connection for a lower back injury, to include spondylolisthesis, L5-S1 secondary to spondylolysis and right lumbar radiculopathy, is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's lower back disability is related to service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a lower back disability, to include spondylolisthesis, L5-S1 secondary to spondylolysis and right lumbar radiculopathy, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1994 to December 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2015, the Veteran appealed the rating decision by filing a VA Form 21-0958, Notice of Disagreement (NOD). In March 2017, a Statement of the Case (SOC) was issued by the RO, denying service connection to the Veteran's claimed back injury. The Veteran filed an appeal, VA Form 9, to the Board in March 2017. In January 2020, the Board remanded the case to the RO, citing an inadequate 2014 VA examination. The Veteran underwent an examination in March 2020 and a Supplemental Statement of the Case (SSOC) was issued in July 2020, explaining that his back condition was less likely than not incurred in or caused by any in-service event. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed, for certain chronic diseases, such as arthritis, which develop to a compensable degree within a prescribed period after discharge from service (one year for arthritis), although there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana, 24 Vet. App. at 443 n. 4; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.2. Entitlement to service connection for lower back condition The Veteran contends he has a lower back disability due to his military service. For reasons outlined below, the Board finds that service connection for a lower back injury, characterized as spondylolisthesis, L5-S1 secondary to spondylolysis and right lumbar radiculopathy, is warranted. As to the first element legally required to establish service connection, the record indicates that the Veteran has a current low back disability. 2014 VA contact examiner diagnosed degenerative joint disease of the lumbar spine. Further, the most recent VA examination in March 2020 includes a diagnosis of spondylolisthesis, L5-S1 secondary to spondylolysis and right lumbar radiculopathy. As to the second element required to establish service connection (medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury), the Board also finds that this criterion is met. In this regard, service treatment records show that the Veteran complained of lower back pain in February 1995, one month after being injured in a car accident and suffering a back injury. The assessment was mechanical low back pain. One year later in November 1995, the Veteran was in an HMMWV accident while deployed to Egypt for Operation Bright Star. Service treatment records also indicate that on separation examination in November 1999 the Veteran reported that he had a past/current medical history of "recurrent back pain or any back injury." The associated physical examination at the time was negative for any spinal abnormalities. As to the third element of a nexus between the current diagnosis and the Veteran's service, the Board finds that this criterion is met in this case. The Veteran was afforded a VA back examination in August 2014. The examination showed a diagnosis of degenerative joint disease of the lumbar spine. The examiner opined the Veteran's back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated the records noted pain the upper back, not the lower back. The Veteran another VA back examination in March 2020. The exam showed a diagnosis for spondylolisthesis. The examiner opined his back 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 Veteran submitted independent medical records from Dr. J.B.A., covering the period of October 2012 to October 2017. Consistent with his service treatment records, Dr. J.B.A. noted the Veteran experienced recurrent problems with low back pain since the two in-service motor vehicle accidents. Dr. J.B.A. opined that the Veteran's two motor vehicle events while on active duty "likely contributed to and/or caused his current back pain problems and lumbar disease problems." In May and June of 2017, additional medical records and disability benefits questionnaire, respectively, were provided by Dr. D.T.C., a licensed chiropractor. Dr. D.T.C. reported the Veteran experienced lower back pain with occasional loss of function in his right leg (radiculopathy). He also noted that the 2014 and 2015 vehicle incidents could have exacerbated the Veteran's lower back condition, causing bilateral radiculopathy. According to Dr. D.T.C., bilateral radiculopathy is a sign of severe root depression and/or spinal cord compression. While the Board found the August 2014 VA examination to be inadequate, the Board finds the October 2017 independent examination from Dr. J.B.A., the May and June 2017 medical records from Dr. D.T.C. and the March 2020 VA examination to be adequate because the clinicians considered the relevant history of the Veteran's claimed disability and provided analysis to support their opinions concerning the etiology of the disability. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning). Furthermore, the Veteran has persistently and credibly reported that he has had back pain since service. Thus, the competent evidence of record is in a state of relative equipoise regarding whether the Veteran's current lower back disability is etiologically related to his period of active service. After this review of the evidence, resolving all reasonable doubt in the Veteran's favor, the Board grants service connection for a lower back disability, characterized as spondylolisthesis, L5-S1 secondary to spondylolysis and right lumbar radiculopathy. In summary, the Veteran currently has a lower back disability and his service records also reflect complaint of a back injury. There is competent and credible evidence of continuous symptoms since service and finally, there is equally probative evidence both against and in support of a nexus between the Veteran's service, his ongoing back complaints and the Veteran's military service. Therefore, the Board finds that the evidence is at least in equipoise. As such, the Board grants the benefits sought. Cory Picton Veterans Law Judge Board of Veterans' Appeals 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.