Citation Nr: 21073610 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 19-21 448 DATE: December 9, 2021 ORDER Entitlement to service connection for a back disorder is granted. FINDING OF FACT A back disorder had its' onset on active duty. CONCLUSION OF LAW The criteria for service connection for a back disorder have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force (USAF) from January 1992 to June 1995. In June 2021, the Veteran testified at a personal hearing before the undersigned and a transcript of that hearing has been associated with the record. The Service Connection Claim The Veteran testified, in substance, that service connection is warranted for a back disability because his back problems started following an October 1992 motor vehicle accident while on active duty, where he was rear-ended, and his back problems have continued to the current day. 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. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. 38 U.S.C. § 5107(a). VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As to a current disability, the June 2016 and/or April 2019 VA examiners diagnosed the Veteran with a back strain and degenerative disc disease status post S1 to L5 fusion. As to an in-service injury, the Veteran's service treatment records document the fact that in October 1992 he was involved in a motor vehicle accident (i.e., rear-ended by another car going 45 mph/a high rate of speed driven by an impaired driver). Service treatment records starting later in October 1992 thereafter document his complaints and treatment for low back pain with paid radiating into his right arm diagnosed as a back strain. See, e.g., service treatment records dated in October 1992, November 1992, December 1992, November 1993, and August 1994. In this regard, the Board notes that when seen for recurrent back pain in November 1992 the examiner explained that the Veteran had acute recurrent back strain with muscular tendon involvement with no bony or disc involvement which explained why the November 1991 back x-rays did not show abnormalities. Next, the Board finds that the Veteran at his personal hearing and his fellow service members in their June 2016 and August 2017 writings competently and credibly reported on the claimant being in a motor vehicle accident while on active duty and/or thereafter having observable problems with his back. See Davidson, supra. Given this record, the Board concludes that the Veteran had an injury while on active duty. See Owens, supra. As to the Veteran having a continued problem with his back post-service, treatment records from Mount Carmel Health, dated from October 1995 to November 1995 (i.e., starting approximately 4 months after the Veteran's June 1995 separation from active duty), document his complaints of back pain, provide a diagnosis of a ruptured or bulging disk at L4-L5, and show his being treated with steroids and thereafter with three nerve blocks. Moreover, in May 2017 Jeffrey W. Barr, M.D., opined, in substance, that the Veteran's in-service motor vehicle accident where he was rear-ended is "...a major factor in the continued symptoms he experiences which eventually led to his lumbar spine surgery and his chronic lumbar pain." Furthermore, the Board finds that the Veteran competently and credibly testified regarding having observable problems with his back disability (i.e., pain) since the documented active duty motor vehicle accident. Given the above. the Board finds that the evidence, both positive and negative, as to whether the Veteran had problems with a back disability in and since service is at least in equipoise. Under such circumstances, and with affording the appellant the benefit of any doubt in this matter, the Board concludes that the Veteran had a continued problem with his back disability in and since service. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra; Davidson, supra; Owens, supra. In reaching the above conclusion, the Board has not overlooked the fact that the June 2016 and April 2019 VA examiner as well as the June 2019 addendum did not contain opines that the Veteran's back disability was not due to his military service. However, the Board does not find the VA examiners opinions credible because the examiners either impermissibly relied solely on negative evidence, did not consider or discuss the 1995 treatment records from Mount Carmel Health showing the appellant's treatment for back problems only 4 months after his separation from active duty or Dr. Barr's nexus opinion, and/or because they did not consider the appellant's competent and credible lay claims regarding having observable back problems since his in-service motor vehicle accident. See Davidson, supra; Owens, supra. Therefore, the Board finds that the evidence, both positive and negative, as to whether the Veteran had problems with his back in and since service is at least in equipoise. Under such circumstances and granting the Veteran the benefit of any doubt in this matter, the Board concludes that he did. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. Accordingly, the Board finds that service connection for a back disability is warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.