Citation Nr: 21007122 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-42 376 DATE: February 8, 2021 ORDER Entitlement to service connection for a back disability is granted. FINDING OF FACT The Veteran’s back disability is etiologically related to an in-service injury. CONCLUSION OF LAW The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1959 to March 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified in hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the Veteran’s claims file. This case was previously before the Board in September 2019, at which time the issue currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. The Board notes that the issue of entitlement to service connection for neck disability was also remanded in September 2019. A review of the record shows that the Veteran was granted entitlement to service connection for cervical spine arthritis in a September 2020 rating decision. That constitutes a complete grant of the benefit sought on appeal, and the Board has limited its consideration accordingly. Service Connection – Back Disability. The Veteran has contended that his back disability is related to his active duty service. Specifically, the Veteran reported that he injured his back during service from a fall down a flight of stairs, and was treated for the injury during service. The evidence establishes that the Veteran has a current disability of degenerative arthritis of the spine, thereby establishing the first element of service connection. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); see January 2020, VA Examination Report. Service treatment records corroborate the Veteran’s assertions of experiencing a fall down a flight of stairs. Those treatment reports, however, depict treatment for neck and ankle injuries. Specifically, in a March 1961 treatment note, it is documented that the Veteran reported that day that he had “slipped and twisted his ankle on the stairs of his billets when falling outside for formation.” A February 1962 record shows that the Veteran reported a sore neck with popping sounds when suddenly twisted. The Veteran has also submitted credible lay statements from family members which confirm his assertions and his records show repeated and consistent reports of the incident of falling down stairs. Given the foregoing, the Board finds that it is at least as likely as not that the Veteran also injured his back in the documented in-service fall. The record reflects that the Veteran underwent a VA examination in January 2020 for his back disability. He reported to the examiner that while stationed in Germany, he fell down the stairs while reporting to formation and the next day he was not able to turn his neck and had hurt his back. The examiner considered the Veteran’s assertion regarding the incident; however, a negative nexus opinion was provided. In finding that the back disability is less likely than not related to the Veteran’s active duty service, the examiner cited the lack of treatment notes or documented complaints during service related to the Veteran’s back condition. It is recognized that service treatment records, including the January 1962 separation examination, are silent for complaints or treatment of the Veteran’s back. Nevertheless, although a lack of documented treatment is probative, it cannot serve as the sole basis for providing a negative nexus opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). For that reason, the Board finds that the VA examiner’s opinion is of little probative value. The record also contains a letter from a private treating physician with a positive nexus opinion. This opinion cites to the Veteran’s service treatment records, showing familiarity with the Veteran’s medical history and claimed incident in service. In opining that the Veteran’s current back disability is more likely than not a direct result of his fall during active duty service, the physician reasons that an early injury to the spine is medically understood as drastically increasing the risk of resulting in such a disability. As this opinion demonstrates familiarity with the Veteran’s medical history, including his medical treatment in service, and provides a reasoned rationale, the Board finds that it offers significant probative value. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment). (Continued on the next page)   Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for a back disability is warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Sutherell, 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.