Citation Nr: 21008219 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 14-26 371 DATE: February 12, 2021 ORDER Service connection for a lumbar spine disability is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether a lumbar spine disability had its onset in or is otherwise related to the Veteran’s period of service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2006 to August 2010. This case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in June 2016. The transcript of the hearing has been associated with the record. The Board remanded this matter for further development in April 2017. In April 2018 and again in June 2020, it was determined the examiner did not sufficiently comply with the remand orders, and this issue was again remanded. The record demonstrates that the criteria for service connection for a lumbar spine disability are met. The Veteran contends his back pain started in March 2010 when he fell off a ladder while working on an airplane in service; he only sought help for his back pain after an unprovoked increase of pain in 2012. See 07/30/2014, Medical Treatment Records–Furnished by SSA. The Veteran also noted he did not complain of back pain in 2010 as he was more concerned about his symptoms of vision loss and headaches. Even then, he waited a few days to report in the hope it would self-resolve because he did not want to jeopardize his opportunity to re-enlist. 06/07/2016, Hearing Testimony. The Board has found this assertion competent and credible. Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation while in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Lay evidence, when credible, is competent to establish the presence of continuity of symptomology for a claimed disability during and since separation from active service and may provide sufficient support for a claim of service connection. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). The absence of treatment shown within service treatment records is an insufficient rationale for a negative nexus opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A VA examiner’s failure to consider the veteran’s testimony when formulating his or her opinion renders that opinion inadequate. Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. The record contains a competent diagnosis of intervertebral disc syndrome; accordingly, competent evidence of a current disability is found. 06/12/2014, C&P Exam. A June 2014 VA examiner determined the disability was less likely than not incurred in or caused by the claimed in-service injury. She provided the rationale that the record does not contain evidence of treatment for back pain until April 2012. 06/12/2014, C&P Exam. A May 2017 VA examiner stated he could not provide a medical opinion without relying on speculation, finding insufficient documented service treatment record evidence of a back injury or chronic, recurrent, or persistent back condition while the Veteran was in service, nor within the year after discharge from service. 05/10/2017, VA Examination. In July 2017, a VA examiner also found the Veteran’s current lumbar spine disability is less likely than not related to the Veteran’s service. In reaching his conclusion, the examiner based his conclusion on the lack of ongoing treatment in service or any private treatment within a year after service. 07/03/2017, VA Examination. The September 2019 VA examiner opined that the Veteran’s current lumbar spine disability was not incurred in or caused by his lumbar spine condition during service. The rationale was solely based on the absence of objective evidence of back pain or a lumbar spine disability documented in the Veteran’s service treatment records. 09/12/2019, C&P Exam. The August 2020 VA examiner also provided a negative opinion finding the Veteran had a complete workup for the complaints at the time of his fall; therefore, it is less likely than not that the Veteran’s back pain, including degenerative disc disease and intervertebral disc syndrome, are due to or incurred in service. 08/08/2020, C&P Exam. The Board acknowledges the VA examiners’ opinions that it is less likely than not that the lumbar spine disability had its onset in or is otherwise related to the Veteran’s periods of service, but assigns those opinions diminished probative weight as they fail to discuss the Veteran’s contention that the lumbar spine disability had its onset during service and whether a fall from a ladder while working on an airplane was as likely as not to result in the lumbar spine disability. See Stefl, 21 Vet. App. at 124. Five VA examiner opinions regarding the etiology of the lumbar spine disability with a notice of the adequacy requirements were solicited. Still, all the opinions were nevertheless inadequate. They all failed to consider the Veteran’s lay statements and based their rationales on the absence of treatment evidence within the service treatment records. See Miller, 32 Vet. App. at 257; Buchanan, 451 F.3d at 1337. The Veteran has described experiencing symptoms of back pain since March 2010; those symptoms are attributed to a lumbar spine disability, as diagnosed by the VA examiners. Inasmuch as the sole basis for the negative nexus opinions is the lack of medical documentation, it is reasonable to assume that had the examiners considered the Veteran’s lay statements, they would have provided a positive nexus. Again, the Veteran perfected this appeal over six years ago, and both the Board and RO have attempted on numerous occasions to have the VA examiners consider the lay evidence of record. The Veteran’s reports of ongoing back pain since his fall in March 2010 are consistent with the evidence of record and tend to support a nexus to his in-service injury. His account of recurrent back pain since service is both competent and credible. Any doubt on this material issue is resolved in the Veteran’s favor, and service connection for a lumbar spine disability is warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.