Citation Nr: 21075388 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-07 396 DATE: December 20, 2021 ORDER Entitlement to service connection for a low back disorder is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran's low back disorder is a result of his active service. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for service connection for a low back disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from February 1968 to June 1970. 1. Entitlement to service connection for low back strain Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§1110, 1131; 38C.F.R. §3.303(a). "To establish a right to compensation for a present disability, a veteran 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' -the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167(Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In its determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F. 3d 1376-77. The Veteran asserts that his low back condition is directly related to his duties performed in the military such as carrying heavy loads for long periods of time, long marches, and the activities of combat. Additionally, he reported that an ammunition dump was hit by rocket fire and caused an enormous explosion that shook him to his shoes. The Veteran's military occupational specialty was rifleman and he is in receipt of the Combat Action Ribbon due to his service in the Republic of Vietnam. As such, his statements, with respect to having back pain in service is credible as it is consistent with the circumstances, condition, or hardships of his service in combat, notwithstanding the fact that there is no official record of a back injury. 38 U.S.C. §1154(b). A December 2015 VA heart examination report showed that the Veteran reported that he stopped working due to back pain. The Veteran underwent a VA examination of the spine in August 2019. The examiner diagnosed degenerative arthritis of the spine. The examiner opined "that the current diagnosis of degenerative arthritis of the spine is less likely than not incurred in or caused by any low back disability during service as there is no evidence of this in available records." The examiner noted the lack of treatment records in service and the Veteran's post-service employment as a mechanic. In an August 2020 VA opinion, the examiner opined The records do not provide any documentation that the veteran complained of, or was treated for low back pain again until 2015, which was more than 45 years later. Hence the records do not provide any indication that there was chronicity of care and it is less likely than not that the veteran's low back arthritis was incurred in or were caused by the claimed in-service history of marching and carrying heavy backpacks in service, to include his confirmed Vietnam combat service. A third VA examiner in September 2021 again opined that his back disorder was less likely than not due to service because the Veteran's service treatment records did not show a record of a back disorder during service. As stated above, the Veteran's statements are competent and credible and consistent with his combat service. It is plausible, as the Veteran wrote, that he was discouraged from reporting problems with his back during service. In contrast, the VA opinions are less probative as they do not consider the Veteran's statements and rely on the absence of in-service documentation. Medical science apparently cannot provide information regarding this claim and the opinions are assigned no weight. Accordingly, with resolution of reasonable doubt in the Veteran's favor, the claim for service connection for a low back disorder is granted. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shana Z. Siesser, 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.