Citation Nr: A21019231 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 200220-83167 DATE: December 2, 2021 ORDER Readjudication of the claim for entitlement to service connection for a low back condition, to include a thoracolumbar spine condition, is granted. Entitlement to service connection for chronic low back pain is granted. FINDING OF FACT 1. Since the unappealed September 2012 rating decision, new and relevant evidence has been received to prove or disprove the claim for service connection for a spine disability. 2. The Veteran has chronic low back pain that produces functional impairment of earning capacity. 3. Resolving doubt in his favor, the Veteran's low back pain is related to service. CONCLUSION OF LAW 1. The criteria to readjudicate the claim for service connection for a low back condition, to include a thoracolumbar spine condition are met. 38 C.F.R. § 3.2501. 2. The criteria for service connection for low back pain are met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. § 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1975 to February 1977. In February 1980 a U.S. Department of Veterans Affairs (VA) Regional Office (RO) denied the back claim. The Veteran did not perfect the June 1980 Statement of the Case, and as such the denial was final. In March 2012 the Veteran filed a claim to reopen. This was reopened and denied on the merits by the RO in September 2012 and the Veteran did not appeal. In December 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the lower back condition most recently addressed in a September 2012 rating decision. In January 2020, the agency of original jurisdiction issued the supplemental claim decision on appeal, which found that new and relevant evidence had not been received. Therefore, the Board must determine whether new and relevant evidence has been received based only on the evidence of record at the time of the decision on appeal. New and relevant evidence VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156(d). Relevant evidence is evidence that "tends to prove or disprove a matter at issue in a claim." 38 C.F.R. § 3.2501. The Board's task is to first decide whether new relevant evidence has been received, as opposed to whether or not the evidence actually substantiates the Veteran's claim. Pertinent evidence added to the record includes the Veteran's testimony at the July 2, 2021 hearing with the undersigned, and an opinion by a private physician. Based on this newly added evidence, the Board finds new and relevant evidence has been added to the record. Entitlement to service connection for a low back condition, to include a thoracolumbar spine condition Generally, direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 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. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). First the Board must assess if the Veteran has a current disability. The evidence of record includes a report from the Veteran's private physician. The physician stated the Veteran has a current diagnosis of an upper, mid, and lower back condition, that includes consistent pain and functional impact, that came from a fall while in-service. The United States Court of Appeals for the Federal Circuit has stated that "'disability' in 38 U.S.C § 1110 refers to the functional impairment of earning capacity." See Saunders v. Wilkie, 886 F.3d 1356. It was also stated in that case that "pain in the absence of a presently-diagnosed condition can cause functional impairment." It was additionally stated in Saunders that "to establish a disability, the veteran's pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that her pain reaches the level of a functional impairment of earning capacity." The Veteran testified to chronic back pain that has produced functional limitations that create the economic inadaptability of being unable to continue his lifelong trade as a carpenter. The first element has been met. Next, the Board turns to the second criteria for entitlement to service connection: the in-service incurrence of disease or injury. In the July 2021 hearing with the undersigned, the Veteran testified that while in service he fell backwards into a foxhole where another service member then fell on top of him. He stated he did not immediately experience pain due to the chaotic nature of the event, but once everything settled down, he visited a medic who handed him a bottle of pain killers. No X-ray or any kind of medical examination was performed at the time. The Veteran continued to perform his duties, including wearing a flak jacket, with weight adding to the pain. The Veteran attempted to seek help, but none was provided. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). The Veteran is competent to report both his experience with his injury, his reasoning for his lack of attempts to seek help, and his continued daily pain that causes functional impact. The Board finds the Veteran's very specific account credible and probative. The Veteran's account of being dissuaded from going to sick call and not understanding the serious nature of the condition is consistent with the time, place, and circumstances of his service. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds no reason to doubt the credibility of the Veteran's reports. The Veteran is competent and credible to report his injury. The second element of service connection is established. Finally, the Board must assess whether a nexus exists between the Veteran's in-service injury and his current disability. The Veteran's claim files include an April 28, 2021 opinion submitted by the Veteran's private provider. In the report, the provider states it is at least as likely as not the Veteran's conditions [upper, mid, and lower back] were incurred in and/or aggravated by the period of active duty. The examiner notes the Veteran's service treatment records (STRs) note an exit exam that clearly indicates a back condition and that he was seen for a back injury during service. Furthermore, the Veteran stated his back has been in pain ever since his injury. The Veteran testified to chronic back pain that has produced functional limitations that create the economic inadaptability of being unable to continue his lifelong trade as a carpenter. The Veteran filed a claim for the back originally in 1977 with a statement from his father indicated that the Veteran was fine before service but now had back pain. Additionally, the Veteran stated that when he checked "arthritis" on his separation examination he meant back pain. A VA examiner provided an opinion in August 2012 that the Veteran's current chronic low back pain was more likely related to a lumbar vertebral fracture that occurred post-service, in about 2002, and as the result of post-service construction work for more than 25 years. The examiner felt the evidence showed that the STRs reflected a single self-limiting acute incident and not related to the current disability. The Board finds both the private physician's and the VA examiner's opinions probative, as they provided clear conclusions with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, the nexus evidence is roughly in equipoise and the benefit of the doubt is resolved in favor of the Veteran. The Board finds the third element of nexus has been met. The Board grants the Veteran's claim of entitlement to service connection for low back pain. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Brewer, 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.