Citation Nr: 21006341 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-23 484 DATE: February 3, 2021 ORDER Entitlement to service connection for chronic lower back pain is denied. Entitlement to service connection for a stomach disability (also claimed as abdominal pain) is granted. FINDINGS OF FACT 1. The evidence does not establish that the Veteran’s current low back disability is due to, the result of or related to his period of service, and the evidence is against establishing that the disability manifested to a compensable degree one year after separation from service. 2. Applying the benefit of the doubt, it is at least as likely as not that the Veteran’s claimed stomach disability had its onset during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a stomach disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 4.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Navy from August 1989 to May 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in July 2018 for further development, and now returns to the Board for adjudication. The Board notes that Veteran’s service treatment records are incomplete. As indicated in the May 2013 RO Memorandum of Unavailability, the RO took appropriate search and notifications for the missing records and further search efforts would be futile. 38 C.F.R. § 3.159(c)(2). In such a case, the legal standard for proving a service connection claim remains unchanged. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). The Board has taken into consideration the missing service treatment records and, as appropriate, employed the heightened consideration of the benefit-of-the-doubt standard to rely on the competent and credible lay reports of medical history and symptoms. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 1. Service connection for chronic lower back pain The Veteran contends that his low back disability is due to his period of service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The service treatment records that are available are silent for any diagnosis or treatment is service of a lower back disability. However, the Board acknowledges that the Veteran’s full service treatment records are not available. The VA made every effort to obtain these records, and as noted in a May 2013 Memorandum, further attempts were deemed futile. The Board concludes that, while the Veteran’s medical records indicate a current diagnosis of degenerative disc disease of the lumbar spine, the preponderance of the evidence weighs against finding that the Veteran’s current low back disability began during service or is otherwise related to an in-service injury, event, or disease. In accordance with the July 2018 Board remand, the Veteran underwent a VA examination in June 2019. The VA examiner opined that it was less likely than not that the Veteran’s low back disability was due to service. The rationale provided was that the first sign of the Veteran complaining of lower back pain post-service was in 2000, but this appears to have been an isolated event, as there is no other significant mention of low back pain until 2012. Based on the inconsistencies of medical evidence, the examiner rendered a negative nexus opinion. In January 2020, the Veteran underwent another VA examination. Again, the examiner opined that it was less likely than not that the Veteran’s lower back disability was due to service. The examiner again noted that there is no documentation of chronicity of a back condition. The rationale provided was that the imaging in 2012 confirmed the presence of degenerative disc disease and arthritis of lumbar spine, however, these were the first back related complaints, appearing approximately 16 years after service. The examiner also noted that a questionnaire dated September 1998 was also silent for any back complaints post-service. Accordingly, a nexus could not be established to service. The Board find the opinions of these examiners highly probative, as they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). After review of the record, the Board finds that the evidence is insufficient to establish service connection for a low back disability. The medical evidence of record indicates that the Veteran’s low back disability is less likely than not due to service. There is no medical evidence offered to the contrary. Moreover, the evidence indicates that the Veteran’s current diagnosis developed many years after separation from service. As such, service connection is not warranted. While the Veteran believes that his low back disability is related to his period of service, he is only competent to report symptoms and is not competent to opine on the etiology of a low back disability, as this is a medically complex question. The Board reiterates that the preponderance of the evidence weighs against findings that the Veteran’s low back disability was due to his period of service. The Board has also considered service connection based on a continuity of symptomatology under 38 C.F.R. § 3.303(b); however, the probative evidence does not indicate that the disability manifested within a year of separation of service or that it occurred continuously since discharge from service. Therefore, service connection based on continuity of symptomatology is not warranted. 2. Service connection for stomach disability The Veteran contends entitlement to service connection for a stomach disability. He claims that he began to have abdominal pain in service. In accordance with the July 2018 Board remand, the Veteran was afforded a VA examination in June 2019. The examiner diagnosed the Veteran with unspecified abdominal pain and constipation. The examiner noted that the Veteran reported abdominal pain began while in service, around 1991, and that the Veteran came to the clinic complaining of abdominal pain in May 1999. It was also noted that the Veteran was treated in 2010 for abdominal pain, at which x-rays showed constipation, and that the Veteran again detailed his abdominal pain in 2013. However, the examiner opined that the Veteran’s condition was less likely than not etiologically related to service. The only rationale provided was that the Veteran’s service treatment records were silent as to complaint or treatment of abdominal pain. Additionally, the examiner noted that the case file seemed “light”, and that there might be records missing. The Board finds this examination and resulting opinion inadequate. In this case, the VA examiner did not consider any lay statements from the Veteran, and rationale was based solely on the absence of evidence of the condition in the Veteran’s service treatment records. A VA examination is inadequate where the VA examiner did not comment on the Veteran’s report of in-service injury and instead relied entirely on the absence of evidence in the service treatment records to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, given the fact that some of the Veteran’s service treatment records are missing, the VA examiner rendered a negative opinion based on incomplete information. Therefore, the VA examiner’s opinion regarding the Veteran’s claim for a stomach condition is inadequate because it is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). (Continued on the next page) The Board acknowledges the chronicity of the Veteran’s condition. It is noted that the Veteran reported occasional abdominal distress in service, and that the record shows medical evidence of complaint and treatment from soon after service until present day, including 1999, 2010, and several times in 2012. Taking together all the evidence described above, the Board finds that it is at least as likely as not that the Veteran’s claimed stomach disability was incurred in or caused by his active service. Given the chronicity following service, the evidence is at least in equipoise, and a grant of service connection for the Veteran’s claimed stomach disability is warranted. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ferrando 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.