Citation Nr: 21075760 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-54 007 DATE: December 21, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is granted. FINDING OF FACT The Veteran's lumbar spine disorder had its onset during service or is otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to February 1974, from November 1990 to April 1991, and from May 2003 to April 2004 to include service in the Republic of Vietnam and in Southwest Asia. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified at a virtual hearing with the undersigned Veterans Law Judge. A hearing transcript has been associated with the record. The record was held open for 60 days following the hearing to allow for the submission of additional evidence. 1. Entitlement to service connection for a lumbar spine disorder is granted. The Veteran asserts that he injured his back in 1991 while having to carry heavy bags and twisting his back. During the June 2021 hearing, the Veteran testified that he felt pain as he was lifting and passing heavy bags of sand and ultimately ended up seeking help within six months of discharge, with such pains continuing to impact him today. The Veteran also submitted a statement from the Veteran's spouse, who explained that the Veteran did not show any back pain concerns prior to the activation in 1990 and 1991, but that after the injury, he began to experience signs of back pain. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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). The Veteran currently has a lumbar spine disorder. Specifically, during the December 2016 VA examination, the Veteran was diagnosed with a lumbosacral strain and degenerative arthritis of the spine. Service treatment records show that the Veteran did complain of and was treated for low back pain in April 1991. At the time, the Veteran reported having back pain for 10 days and was diagnosed with having muscle strain. While the report of medical examination and history are not available for 1991, the Veteran did report for a medical examination in July 1993, where he was found to have normal evaluation of the spine. The Veteran also submitted a private record indicating that the Veteran sought treatment for his low back pain in May and July 1991. In July 1991, however, the medical provider indicated that his lumbar strain had resolved. The Veteran himself reported that his back pain had improved. Turning to the question of whether there is an etiological relationship between the Veteran's service and his diagnosed lumbar spine disorder, the Board notes that the record contains two etiology opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998). The Board will consider each of these opinions below. A December 2016 VA examiner opined that the claimed lumbar spine disorder was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner explained that the lumbar strain had resolved in 1991 as noted. The examiner also referred to the 2002 Report of Medical History where the Veteran denied having had recurrent back pain. The examiner also referenced that the first diagnosis of degenerative disc disease of the lumbar spine was in 2008, which is over 17 years from the lumbar strain treatment in 1991. The examiner also explained that the degenerative disc disease is inconsistent with the diagnosis of the strain, and therefore, nexus could not be established. A June 2021 private opinion from Dr. S.N., a physician, indicated that he had been treating the Veteran for his low back pain and degenerative joint disease of the lumbar spine. The physician explained that based on the review of the Veteran's service treatment records and his current treatment records, that the claimed lumbar spine disorder is at least as likely (50 percent or greater probability) as not incurred as due to the Veteran's military service. In support of this opinion, the physician referred to the March 1991 and May 1991 complaints of low back pain and explained that the Veteran has had progressive worsening of the back pain and had received treatment on a consistent basis because of the back pain. The Board finds both the December 2016 VA opinion and the June 2021 private opinion, in the context of the entirety of the evidence, highly probative as the examiners reviewed the entire record and provided an adequate rationale, the bases of which is consistent with the evidence of record. The Board finds both opinions highly probative as the examiner reviewed the claims file, interviewed the Veteran, and provided an opinion supported by a clear rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Both opinions are equally probative. In sum, the Veteran has competently and credibly reported that he began experiencing symptoms that were attributed to a later diagnosis of degenerative disc degenerative, during his active service and since. The Veteran has current diagnosis of degenerative disc disease of the lumbar spine. The December 2016 VA medical opinion indicates the Veteran's degenerative disc disease of the lumbar spine is less likely than not as a result of his active service. The June 2021 private medical opinion indicates the Veteran's degenerative joint disease of the lumbar spine is more likely than not as a result of his active service. Moreover, there is no sufficient basis for the Board to reject this supportive opinion and to further develop this issue. Cf. Mariano v. Principi, 17 Vet. App. 305 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Accordingly, after resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise for the issues of entitlement to service connection for a lumbar spine disorder and it is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.J. Kim, 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.