Citation Nr: 21076771 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-25 732 DATE: December 27, 2021 ORDER Service connection for back disability, diagnosed as degenerative disk disease of the lumbar spine, is granted. FINDING OF FACT The Veteran's low back disability had its onset in service. CONCLUSION OF LAW The criteria for service connection for lumbar condition 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 in the United States Navy from August 1995 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. SERVICE CONNECTION Lumbar spine The Veteran reports that service connection is warranted for his lumbar condition because the disability started while he was in service. In support, he reported having back problems after an injury in service where he received medical treatment. Additionally, he continued having back problems thereafter and received medical treatment, to include physical therapy and medications. See BVA hearing transcript (October 2021); and see also VA medical treatment record (December 2016). Further, a treating physician provided a positive nexus opinion stating that the Veteran has been suffering from chronic low back pain for over 20 years and that it is more likely than not that his current lumbar condition is related to his back injury in service. See Government medical treatment record, T.T (October 2017). Indeed, his service treatment record (STR) and medical record shows that he suffered from back problems, symptoms and functional impairment in service and received medical treatment during service and thereafter. See STR (March and June 1998); see also VA medical examination (December 2016). In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303(a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran has been diagnosed as having degenerative disc disease of the lumbar spine. See VA medical examination (December 2016); and see also VA medical treatment record (January 2017). Thus, the Veteran has a current condition, and establishes the first element for service connection. Additionally, the Veteran's STR and medical record shows back problems and functional impairment with treatment in service and thereafter. Id; and see also STR (March and June 1998). Furthermore, the Veteran's private physician submitted letters providing a positive nexus opinion. See Government medical treatment record, T.T (October 2017). The Board acknowledges that on December 2016 a VA examiner provided a negative nexus opinion on the relation of the Veteran's lumbar condition to service. However, consistent with the Veteran's reports, the evidence on record shows that the Veteran's back disability is related to service, thus, service connection is warranted. The Board finds that the medical and lay evidence linking the Veteran's lumbar disability to service is probative, competent and credible. Indeed, the Veteran's medical record shows back problems in service and thereafter. In reaching this determination, the Board notes that in Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Court, citing its earlier decisions in Swann v. Brown, 5 Vet. App. 229 (1993) and Reonal v. Brown, 5 Vet. App. 458 (1993), reaffirmed the proposition that, in evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate or that are contradicted by other facts of record. Id. at 179. In Kowalski, however, the Court declared that the Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history provided by the veteran, and instead must evaluate the credibility and weight of the history upon which the opinion is predicated. Id. In Coburn v. Nicholson, 19 Vet. App. 427 (2006), the Court, citing Kowalski, as well as Swann and Reonal, emphasized that the Board may not disregard a medical opinion solely on the rationale that the medical opinion is based on a history provided by the veteran. Id. at 432-33. Here, the RO determined that the Veteran's private medical opinion was not probative because there was "no evidence showing that [the examiner] ever reviewed [his] claims file." In light of Kowalski and Coburn, and because the Board finds that the facts reported by the Veteran are accurate, service connection is warranted. In short, the Board finds that the competent and credible medical and lay evidence, shows that his back problems began during service and have been recurrent since that time. Because the evidence shows that the Veteran's back disability is related to service, thus, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). Thus, in light of the competent lay and medical evidence, including the Veteran's sworn testimony, linking the onset of the Veteran's back disability to service, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for the Veteran's back disability is warranted because his back disability had its onset during his period of military service. As such, service connection for back disability is granted. See 38 C.F.R. § 3.303. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.