Citation Nr: 21008102 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-27 968A DATE: February 11, 2021 ORDER Service connection for a thoracolumbar spine disability is granted. FINDING OF FACT The Veteran has a current diagnosis of a thoracolumbar spine disability, and the evidence is in equipoise regarding whether it is related to his active military service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a thoracolumbar spine disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 1987 to April 1990. This matter comes before the Board of Veterans Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. The Board previously considered this appeal in March 2018 and again in January 2020 and remanded this issue for additional development. The requested actions have been completed by the AOJ, with no further action necessary to comply with the Board's remand directives, so this case is once again before the Board for further appellate consideration. The Board therefore find substantial compliance with the January 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). Additionally, claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309 (a) - benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303 (b). A decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303 (b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). In its determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a thoracolumbar spine disability The Veteran has asserted that he has a back disability that is related to his active service. Specifically, he reported that he injured his back by lifting a breech block for a cannon while in training and that he has continued to experience back pain since that time. Regarding evidence of a current disability, the Veteran has current diagnoses of chronic back pain, post traumatic residual degenerative joint disease and chronic discopathy of the lumbar spine emphasis lumbosacral region, multilevel degenerative disc disease without myelopathy. Therefore, the first element of service connection has been met. Next, the Veteran’s service treatment records indicate that he was treated for a low back strain in August 1987 after lifting a heavy object. In January 1988 he complaint of low back pain while lifting a motorcycle out of a back of a truck. He was assessed with low back strain The Veteran was seen for low back pain for several days in January 1988 and in April 1989. A January 1988 X-rays show minimal thora-lumbar scoliosis with minimal rotation. As such, the Board finds that the second element of service connection has been met. A September 2011 X-rays shows arthritis of thoracolumbar spine. Findings: Mild loss of disc space height at L5-S1 compatible with mild DDD. There is a small spur off the superior anterior aspect of L4. There is mild spurring off L1 and L2. There is mild loss of disc space height at L3-L4 also compatible with mild DDD. There is a slight dextroscoliosis to the lumbar spine possibly positional in nature. Impression: Mild degenerative findings. As to the remaining element, a nexus between his current disability and the in-service incident, the Board finds the evidence is at least in equipoise. In balancing the two positive private opinions and the two negative VA opinions, the Board finds service connection is warranted. The Veteran was afforded a VA examination in January 2012. The VA examiner opined that the Veteran low back condition was at least as likely as not caused by service. The rationale given is that the Veteran was diagnosed with lower back strain on active duty between 1987-1990. However, the VA examiner further noted that “the Veteran’s DDD is not caused by lower back strain between 1987-1990. The Veteran was in a MVA in 2000 and injured his back. No documented evidence of chronicity after discharge from the military.” In support of his claim, the Veteran provided a September 2012 private examination report from Dr. P.Y. The private examiner noted a diagnosis of post traumatic residual degenerative joint disease and chronic discopathy of the lumbar spine emphasis lumbosacral region. Dr. P.Y. noted that the Veteran reported an injury to his low back while lifting a breech block for a cannon, that while lifting he lost balance and fell to his left side twisting his back in the process. He noted that the Veteran had several visits with military personnel for this condition which proved to be ongoing and non resolving. Dr. P.Y. opined that its more likely than not that the Veteran’s low back condition is directly and causally related to the injury sustained in the military service and that this is a permanent and progressive condition. The Veteran has stated that the first time he ever had problems with his back was in active service, long before his auto accident in 2000. See April 2012 notice of disagreement. In his October 2017 Board hearing, the Veteran testified that he had seen chiropractors for his low back pain shortly after leaving the service in 1990 but his medical records are no longer available. In February 2019, the AOJ obtained an addendum to the January 2012 VA examination. The same VA examiner modified her January 2012 positive nexus opinion to a negative one. The VA examiner opined that the Veteran’s low back condition was less likely than not incurred in or caused by service. The rationale provided is that “there is no documented medical evidence to support the above claim that any current back disability is related to any period of active duty service, to include any injuries sustained by the [V]eteran during service.” The VA examiner added the same rationale given in January 2012. The Veteran was afforded another VA examination for back conditions in March 2020. The examiner diagnosed the Veteran with multilevel degenerative disc disease without myelopathy. Veteran reported that he believes his back problems started in the service probably in 1987 when he lifted a block for a cannon mounting; he also reported that he had several accidents after he left the service. The examiner opined that the Veteran’s lumbar spine condition was at least as likely as not (50% or greater probability) incurred in or caused by the claimed in-service injury, event or illness. The VA examiner noted that the rationale for this opinion is based on the evidence that he stated that he first noted his low back pain in the service when he lifted [a] heavy object in training. He was treated conservatively. He was seen three times more for back pain resulting [from] incidents as follows: [January 1988] Back pain after lifting motorcycle out of the truck. [January 1988] and [January 1988] with [complaints of] low back pain for follow up (this is perhaps due to the motorcycle lifting). He was also seen two times in 1989 in the service without any additional injuries … for pain lasting for two weeks. X-rays showed scoliosis of dorso-lumbar spine without any evidence of trauma.” The VA examiner added that the Veteran had multiple serious accidents and injuries after he left the service, in 1995 or 2000, when he sustained serious injuries to his neck and lumbar spine. The VA examiner further added that “the 2012 VA examiner was correct in the sense that his injuries in the service were only minor but had serious injuries occurred after leaving the service. But we must give him the benefit of the doubt because of his original symptoms started in the service after lifting heavy object and he was seen for symptoms of back pain at least 4 or 5 different times for symptoms of his back pain. The original discovery of his scoliosis was only made in the service after his back x-rays were done in 04/1989. His current back condition is not entirely related to the injuries in the service. Over the years he also has developed serious multilevel dorso-lumbar spine degenerative arthritis which is in part age related and genetically mediated process resulting in multilevel dorso-lumbar spondylosis and degenerative disc disease causing some disc protrusions at L4 L5 and L5-S1 levels with some radicular symptoms.” The AOJ requested an addendum medical opinion. In a May 2020 addendum report, the VA examiner opined that the Veteran’s low back condition is less likely than not incurred in or caused by the claimed in-service injuries. The May 2020 VA examiner reasoned that “the Veteran's AD service was from 1987 until 1990. During that time, he was seen for back pain numerous times. His back pain was described as being acute, starting anywhere from 24 hours to 2 weeks prior to being seen and typically related to an event, specifically in 1988 after lifting a motorcycle. His x-rays were negative for significant/pertinent findings and he was treated for a lumbar strain and treated conservatively. His separation examination is silent for low back pain. Post separation file is silent for back pain until 2010, when he was involved in a four-wheeler accident resulting in a sacral fracture. In 2011, his lumbar x-ray showed mild DJD of the spine. Reports also show that Veteran was in an MVA in 2000 also with back injury, but those records were not found. The Veteran separated in 1990 and at separation his file was silent for back complaints. His file remained silent for back complaints until 2010 at which time he suffered a four-wheeler accident resulting in a sacral fracture. One year later he was diagnosed with mild DJD of the lumbar spine. The Veteran had a hiatus of 20 years without evidence of a back condition, making it less likely than not that his back condition was caused by AD, but rather due to the multiple back injuries he sustained post separation.” While the Board cannot ignore or disregard a VA examiner's medical conclusions, Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, the January 2012, February 2019 and May 2020 examiner’s opinions are conclusory and did not address the Veteran’s competent report on continuity of symptomatology since service and low back symptoms before his motor vehicle accident in 2000. Further, lack of documentation of continuity of care in itself cannot form the basis for a negative nexus opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Thus, the January 2012 nexus opinion, its February 2019 addendum and May 2020 addendum are afforded little probative value and cannot serve as the basis of a denial for the appeal. Lay testimony is competent as it relates to symptoms which are observable through the use of one of the five senses. The Veteran is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Throughout this current appeal, the Veteran has contended that he has experienced relevant lower back symptoms, to include lower back pain, since he injured his back while lifting a breech block for a cannon while in training in 1987. The Board finds that the Veteran is competent and credible to describe back pain, which is within the realm of his personal experience. However, under the law, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). In this case, in addition to the September 2012 private opinion and the January 2020 VA opinion, there is the consistent and credible lay report of the onset of pain in service with it continuing since that initial injury. Service records indicate that the pain began in 1987 with a diagnosis of low back strain. Post service private records also reflect he reported this same history to treating doctors. VA treatment records continue to reflect he described the onset of his condition to be while lifting a heavy a heavy object in service. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). Thus, we have the consistent report of onset in service, reports of continuing pain and an eventual diagnosis of a form of arthritis, further supported by a September 2012 private opinion and a January 2020 VA opinion. As noted by several of the examiners, however, the Veteran also sustained several serious post-service injuries, impacting the spine. The examinations and the lay statements are in equipoise that at least some portion of the spine disability is from the initial injury in service. Thus, as there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” this is a situation where the benefit of the doubt rule applies. Ashley, 6 Vet. App. at 59; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, with the resolution of reasonable doubt in favor of the Veteran, service connection for the Veteran’s thoracolumbar spine disability is granted. See 38 U.S.C. § 5107(b); 38 C.F.R.§ 3.102. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.