Citation Nr: 21077406 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-32 843 DATE: December 29, 2021 ORDER Entitlement to service connection for a lumbar spine (back) disability is granted. FINDING OF FACT The Veteran's current back disability is the result of an injury during basic training. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability are met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 2008 to January 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board notes that entitlement to service connection for the Veteran's back disability was denied for lack of a current disability in a February 2013 rating decision. However, in August 2013, within one year of that rating decision, new and material evidence in the form of medical records showing an L5-S1 disc protrusion was associated with the record. 38 C.F.R. § 3.156(b); August 2013 VA MRI report. Accordingly, the February 2013 decision is not final, the Veteran's January 31, 2011 claim remains pending, and the Board may proceed in analyzing the merits of the appeal. The Veteran asserts that his back disability is related to a basic training injury. See January 2011 and November 2013 VA Forms 21-4138; February 2017 Notice of Disagreement (NOD); June 2018 VA Form 9; November 2021 Board Hearing Transcript. Specifically, he attributes his back disability to an injury incurred while performing a "fireman's carry." See April 2011 VA Form 21-4138. The Board agrees. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Here, the Veteran has a current diagnosis of degenerative disc disease of the lumbar spine. See October 2015 VA examination report; August 2013 VA MRI report. Thus, element one is met. Turning to the second element of service connection, in-service incurrence of a disease or injury, the Veteran's STRs identify reports of back injuries/pain, to include an injury in relation to performing a "fireman's carry" consistent with the Veteran's Board hearing testimony. See March 2008 and January 2009 STRs; November 2021 Board Hearing Transcript. Accordingly, element two is also met. Regarding the final element of service connection, nexus, the only competent nexus opinions of record are in favor of the claim. At the outset, the Board acknowledges that the Veteran sustained a work-related back injury in July 2013. However, the above-referenced favorable nexus opinions support that the Veteran evidenced a service-related back disability prior to his work-related back injury in July 2013. Specifically, in an August 2014 independent medical examination report, chiropractor B.D.R. determined that the Veteran had a chronic low back pain condition for at least five years prior to his 2013 workplace injury (i.e. since service), and this finding is supported by the Veteran's contemporaneous medical records. See, e.g., May 2010 private treatment record (noting back strain with prior lifting injury in service); April 2013 VA treatment record (noting back pain and basic training injury). Moreover, in a November 2013 statement, orthopedic surgeon Dr. S.S.P. opined that the Veteran's lumbar spine disc disease was related to his 2008 back injury during service. In support of this favorable opinion, Dr. S.S.P. emphasized that the Veteran's July 2013 back sprain following a post-service work injury had resolved, and highlighted that the level of disc degeneration noted on his August 2013 MRI "showed degenerative disc disease with narrowing of the disc, which would indicate the condition is chronic and has been developing for a few years," as opposed to resulting from his more recent work injury in July 2013. These opinions relating the Veteran's back disability to service are well-reasoned and supported by the record and are therefore probative evidence in favor of service connection. The Board acknowledges the unfavorable nexus opinion from the October 2015 VA examiner. However, as that examiner based his conclusion solely on a "negative" service separation examination without consideration of the Veteran's in-service complaints of back pain, his 2013 MRI findings, the positive nexus statements referenced above or any lay statements of record, it is not probative evidence. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate or incomplete factual premise is not probative). Thus, as the only probative medical opinions are in favor of the claim, the third element of service connection is met, and service connection is established for a back disability. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.