Citation Nr: 21007455 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-00 825 DATE: February 9, 2021 ORDER Entitlement to service connection for degenerative disc disease of the spine is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the evidence of record establishes that the Veteran’s current spine disability is etiologically related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative disc disease of the spine have been met. 38 U.S.C. §§ 1110, 1131, 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 June 1972 to June 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran seeks entitlement to service connection for a back disability that he contends was suffered during his active duty service and continues through the present day. Specifically, he contends that he injured his back while lifting heavy equipment in February 1974. See February 2018 Appellant’s Brief. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2018); 38 C.F.R. § 3.303 (2018). A Veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The diagnoses of degenerative arthritis of the spine and intervertebral disc syndrome were confirmed at the January 2020 VA examination. Thus, the current disability prong of a service connection claim has been satisfied. The Veteran alleges that his current back disability is related to an injury he sustained during active duty service. A service treatment record shows that the Veteran was seen for “back pains” in February 1974 and was diagnosed with sinusitis and chest congestion in the same entry. The Veteran was also seen in June 1974 for back pain after diving into water. Lastly, the Veteran was seen in January 1975 for back pain when defecating. The record establishes than an in-service event has occurred. The Veteran was afforded a VA examination in June 2013 to determine the etiology of the Veteran’s spine disability. The examiner rendered a negative nexus opinion; however, the opinion of the June 2013 VA examiner has been determined as inadequate by the Board in a December 2019 Board remand. A positive nexus opinion was provided by the Veteran’s private physician in August 2011 and May 2014. The physician opined that the Veteran’s “history of lifting heavy equipment while cleaning the ship in February of 1974 is compatible with a legitimate mechanism for back injury…” and that the Veteran’s current back disability is more likely than not related to his military service. See August 2011 Private Medical Treatment Record. In response to a negative nexus opinion, the physician explained that the type of disease progression seen in the Veteran’s particular region of the spine is not typically seen in a patient of that age. It was also noted that the Veteran had no previous back pain or symptoms prior to February 1974, and has had intermittent back pain since that time. See May 2014 Private Medical Treatment Record. An addendum opinion was obtained in January 2020 to adequately address the Veteran’s lay statements of an injury during service and continuous symptoms after discharge, and to reconcile the positive and negative medical opinions of record. The January 2020 examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the complaints of back pain were acute in nature, with no evidence of chronicity of care. Regarding the positive medical opinion, the examiner stated “there is no objective evidence in current available records or today's exam of a lifting injury in 02/1974 or during service.” This statement does not refute the notion that lifting heavy equipment is a legitimate mechanism for back injury, which was the theory espoused by the Veteran’s private treating physician. The examiner simply stated that there is no evidence of a lifting injury during service. However, the record does not support that assertion. For a VA medical opinion to be adequate, it must include consideration of the Veteran’s credible lay statements, it must be based on accurate factual premises, and it must contain a rationale sufficient to support its conclusions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (explaining that a medical report without “a reasoned medical explanation” lacks probative value). Here, service treatment records, dated November 1974, state that the Veteran “was throwing heavy materials over the side…”. This entry in November 1974 led to a diagnosis of right shoulder strain, and is strong evidence that the Veteran did indeed lift heavy materials at least once while in service. It is reasonable to conclude that the Veteran’s claim of lifting heavy equipment in service is credible. The Veteran is afforded the benefit of the doubt that the back pains documented in February 1974 may also be due to lifting heavy material. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107 (b)). The Board finds the medical opinions of the Veteran’s private physician to be more probative than any other opinion of record, including the January 2020 VA examiner. The probative value of a medical opinion comes from its reasoning, and a failure to provide a rationale for an opinion goes to its weight or credibility. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2004); Herandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). The January 2020 examiner provided a rationale for a negative opinion that was based on the faulty premise that a lifting injury did not occur. Ultimately, the examiner’s rationale did not controvert the medically sound and well-reasoned rationale of the August 2011 and May 2014 private opinions. (Continued on the next page)   Therefore, at the least, the evidence is in relative equipoise as to whether the Veteran’s back condition is etiologically related to his military service, with probative evidence both for and against the claim. In such cases, the benefit of the doubt is for application. See 38 U.S.C.A. § 5107(b). When resolving doubt in the Veteran’s favor, the Board finds the Veteran’s back condition is in fact related to service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, 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.