Citation Nr: 21008925 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-46 635 DATE: February 18, 2021 ORDER Service connection for a back disability is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether a back disability had its onset in or is otherwise related to the Veteran’s period of active service. CONCLUSION OF LAW The criteria for service connection for a back disability have been 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 October 1967 to October 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in December 2019, on which occasion0 the issue on appeal was remanded for additional development. In September 2019, the Veteran testified at a Board hearing. A transcript of the hearing has been associated with the virtual file. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 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 benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The Veteran contends back pain began during service and has persisted since discharge from active service. See September 2019, Hearing transcript; February 2011, VA treatment record. After review of the record, the Board finds the criteria for service connection for a back disability have been met. The record contains competent diagnoses of degenerative joint disease of the lumbar spine and chronic low back pain. See Private treatment records dated March 2014 and August 2020; VA treatment records dated October 2014 and September 2015. The Board, accordingly, finds competent evidence of current back disability. Service treatment records (STRs) indicate the Veteran complained of flank pain lasting for one week in 1968 and low back pain in 1969. See STRs dated May 1968 and September 1969. Post-service treatment records indicate the Veteran’s long history of treatment for chronic low back pain. In November 1970, the Veteran was hospitalized for six days due to back pain and dysuria. VA treatment records as early as 2010 indicate the Veteran’s continued complaints of chronic low back pain. See VA treatment records dated September 2010, February 2011, October 2014, and September 2015; November 1970, Private treatment record. The Veteran was provided two VA examinations for his lumbar spine, both of which are inadequate. In March 2016 ,the first VA examiner rendered a negative nexus opinion but failed to consider STRs indicating flank pain lasting one week and the Veteran’s complaints of continuity of back pain since discharge from service; thus, the VA examiner did consider all pertinent medical and service records of the Veteran. In January 2020, a second VA examiner, in contravention with the law, determined the lack of objective evidence of continuous back pain during service renders her unable to find chronicity. See VA examinations dated March 2016 and January 2020; Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history or if it is based solely on the absence of documentation in the record) (emphasis added); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). In August 2020, Dr. Hernandez, the Veteran’s private primary care physician, stated he has been treating the Veteran for low back pain since February 2020 and reviewed the Veteran’s STRs and relevant medical records. Specifically, he noted the Veteran’s STRs indicate treatment for flank pain in 1968 and low back pain in 1969. Based on his review, Dr. Hernandez opined the Veteran’s current back disability, to include low back pain, is at least as likely as not related to active service. See August 2020, Private treatment record. The Board finds the August 2020 positive nexus opinion to be competent, credible and highly probative as it is based on an in-person examination, review of relevant service and medical records, and considered the Veteran’s lay statements. See Nieves-Rodriguez, 22 Vet. App. 295. In light of the above, the Board finds the weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s current back disability had its onset in or is otherwise related to his period of active service. Specifically, the Board notes the positive nexus opinion from the Veteran’s treating private physician and the Veteran’s well-documented chronic low back pain that persisted since discharge from active service. See Private treatment records dated November 1970 and August 2020; VA treatment records dated September 2010, February 2011, October 2014, and September 2015. The Board finds the Veteran’s lay statements concerning the onset and continuation of low back pain to be competent, credible, and highly probative. Jandreau, 492 F.3d at 1377. Resolving all reasonable doubt in the Veteran’s favor, service connection for a back disability is warranted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-58. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.