Citation Nr: 21074401 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-45 262 DATE: December 15, 2021 ORDER Service connection for a back disability is granted. FINDING OF FACT The Veteran's symptoms of the back disability, diagnosed as arthritis, had their onset during service and have been continuous since separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.303(b), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1976 to July 1980 and from February 1982 to February 1985. In July 2021, the Veteran testified in a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Service Connection for a Back Disability Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed with arthritis of the lumbar, which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Analysis The Veteran has a current diagnosis of a back disability, to include arthritis. Service treatment records contain multiple occasions of back treatment, to include a surgery in March 1980. In January 1980, the Veteran complained of low back pain for three days after lifting a heavy hatch cover. He stated that he heard a "crunch" then a half minute later the pain started. Muscle spasms were noted, and range of motion was slightly restricted by pain. The impression at the time was a lumbar strain. The Veteran continued to receive treatment in January and February 1980. In March 1980, it was noted that he had numbness in the back of both legs with evidence of paresthesias. Later in March 1980, service treatment records show that the Veteran underwent a back surgery with a final diagnosis of herniated lumbar disc with right sciatica. The report further notes that the Veteran had a two-week history of severe backpain radiating down the right lower extremity with numbness, weakness, and tenderness in the leg. The Veteran continued to complain of back pain in 1983 and 1984. During an October 2016 VA back examination, the Veteran reiterated how he hurt his back during service, which required hospitalization for five to seven days and physical therapy. He added that after service, he continued to have back pain that did not get worse until he got older. After a review of the record, the examiner opined that the back disability was less likely than not related to service because the separation examination was normal and there were no documented back complaints since service until 2015, decades later. The examiner added that the Veteran was able to work in a physically demanding job post-service and do other activities. Lastly, the examiner added that the Veteran was in the obese category, which could put stress on his back. The examiner did not address any of the actual treatment during service. During the 2021 Board hearing, the Veteran explained that at the time of separation from service his back did not bother him but that the pain was still there and only worsened later on in life. He added that he had back problems continuously since the injury in service. Upon review, the Board finds the medical opinion of record lack any significant probative value. Specifically, the Board finds the October 2016 opinion inadequate because it failed to even address the fact that the Veteran's injury during service was so severe that it required a surgery and solely on the lack of recorded medical treatment records post-service to conclude that the currently diagnosed back disability was not related to the in-service injury. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n.1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). However, the Board notes that lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim and cannot be used as a rationale in explaining why the current disability is not related to service. Id. Additionally, the examiner noted that post service there were no back problems until 2015; however, the examiner disregarded the Veteran's competent and credible lay reports during the examination as well as during the pendency of the appeal. Of note, in a precedential decision, the U.S. Court of Appeals for Veterans Claims held that a negative medical nexus opinion that fails to address the reports of the Veteran's medical history and symptoms along with the Board's lack of credibility finding is inadequate. See Miller v Wilkie, 32 Vet. App. 249, 259-60 (2020). As noted, the opinions solely relied on the lack of objective evidence and did not consider nor address the Veteran's lay reports regarding continuity. While the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d 1331. In this regard, although no documented medical evidence is available after discharge and until the Veteran again sought treatment, the Board finds the Veteran's lay reports as to continuity of symptoms both competent and credible. After review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence is at least in equipoise on the question of whether the noted back injury in service is related to the diagnosed post-service back disability. See 38 C.F.R. § 3.303(b). As discussed above, there is indisputable documented medical evidence of multiple back complaints and treatment in service that required a surgery for herniated disc. In addition, the Veteran competently and credibly asserted that symptoms of his back pain have been continuous since separation from active duty. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that symptoms of arthritis had their onset in service and have continued ever since. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. This is sufficient to satisfy the nexus requirement. Hence, service connection for the Veteran's back disability must be granted. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.