Citation Nr: 21007838 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-28 367A DATE: February 10, 2021 ORDER Entitlement to service connection for a back disability is granted. REFERRED The issues of special monthly compensation (SMC) for loss of use of creative organ and entitlement to service connection for radiculopathy of the bilateral lower extremities were raised during the November 2020 hearing and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT The Veteran’s back disability is related to service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a back disability are met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Army from June 1979 to July 1979, from July 1980 to August 1980, and from March 1981 to March 1985. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. The undersigned granted the request to hold the record open for 60 days to allow the submission of additional evidence. To date, no additional evidence has been submitted in support of the claim. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Also, 38 U.S.C. § 1154(a) requires that VA give ‘due consideration’ to ‘all pertinent medical and lay evidence’ in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, ‘[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.’ Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Finally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for a back disability is granted. In this case, the Veteran seeks entitlement to service connection for a back disability, asserting that his disability is related to his third period of active duty service. A review of the evidence shows that back symptoms began during the Veteran’s third period of active duty service; thus, the Board finds that service connection for a back disability is warranted. During the November 2020 Board hearing, the Veteran testified that he has experienced back symptoms since service. He stated that his military occupational specialty (MOS) was a heavy equipment mechanic, which required lifting motors, transmissions, and parts off of vehicles. Indeed, the Veteran’s military personnel records show that his MOS for his third period of active duty service was automotive mechanic repairman. In his June 2017 substantive appeal (VA Form 9), the Veteran stated that his back issue started from “dealing with a variety of military vehicles,” such as 2.5-ton Jeeps and 5-ton trucks. He also indicated working with motors and transmission removal and transfer. Further reiterating the Veteran’s assertion that his back condition is a result of working with vehicles and heavy machinery in service, in an October 2017 VA Form 646, Statement of Accredited Representation in Appealed Case, the Veteran’s representative indicated that the Veteran stated that he had back problems in service from working on a variety of military vehicles, which involved moving and replacing tank tracks, motors, and transmissions. Initially, the Board notes that the Veteran’s service treatment records for his third period of active duty service do not reflect that the Veteran had any problems related to the back upon entry into active service. The Veteran’s service treatment records show that he complained of constant back pain. A service treatment record dated October 1981 shows that the Veteran complained of lower back pain for the past four days. A physical examination revealed loss of range of motion. The Veteran was assessed with a sore muscle. A service treatment record dated January 1984 shows that the Veteran complained of bilateral flank pain in the back. A service treatment record dated May 1984 shows that the Veteran complained of lower back pain for the past three days. He reported that the pain had worsened. An undated service treatment record shows that the Veteran again complained of back pain for the past three days. He reported that he noticed pain after lifting weights. He was assessed with a back strain. A subsequent service treatment record dated May 1984 shows that the Veteran continued to complain of back pain. A service treatment record dated October 1984 shows that the Veteran complained of back pain for the past five days. A physical examination revealed loss of range of motion. Post-service medical records show that the Veteran continued to complain of back pain following separation from service. Notably, during the November 2020 hearing, the Veteran testified that he had back issues within six months to a year of separation. A June 2014 private treatment record shows that the Veteran complained of low back pain. In April 2015, the Veteran underwent a VA examination for his back. The examiner diagnosed lumbar spondylosis, degenerative disc disease, and lumbar strain. The examiner provided a negative nexus opinion for the Veteran’s back condition. As regards to the claimed back disability, while the record includes a negative nexus opinion, the Board finds that the unvarying statements of the Veteran regarding the onset of his symptoms and his symptoms since service to be competent and credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Furthermore, the record reflects that the Veteran’s back disability did not exist prior to service. Moreover, the record shows that the Veteran consistently complained of back pain during service and post-service. As noted in the preceding paragraph, the Veteran is certainly competent to testify to symptomatology such as chronic pain. (CONTINUED ON NEXT PAGE) Thus, in light of the foregoing and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for a back disability is warranted. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.