Citation Nr: 21008974 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-39 886 DATE: February 18, 2021 ORDER Entitlement to service connection for degenerative arthritis of the spine with bilateral lumbar radiculopathy is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s low back disability is related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for degenerative arthritis of the spine with bilateral lumbar radiculopathy have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from January 1980 through March 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision that denied service connection for lower back pain. The Veteran filed a Notice of Disagreement (NOD) in October 2014 and a Statement of the Case (SOC) was issued in September 2015. The Veteran perfected her appeal in November 2018. In April 2019, the Veteran’s claim was remanded by the Board for a VA examination and to acquire additional medical records. A Supplemental Statement of the Case (SSOC) was issued in March 2020, continuing the denial of the Veteran’s claim for service connection for a lower back disability. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Entitlement to a service connection for a low back disability. An October 2020 VA examination report indicates the Veteran was diagnosed with degenerative arthritis of the lumber spine with bilateral lumbar radiculopathy. Thus, the current disability element is met. At the examination, the Veteran reported to the examiner that she injured her back doing push-ups in basic training, and then injured it again in February 1981, during a fall from a truck. After the accident she was put on bedrest for three days. In an undated statement, the Veteran’s sister, and fellow veteran, corroborated her statement that she was originally injured in basic training. The Board finds these statements competent and credible. Thus, the in-service injury element has been met. The remaining question is therefore whether a nexus exists between the Veteran’s current lower back disability and the back injury she suffered in service.  In support of a nexus, in the Veteran’s November 2015 appeal (VA Form 9), she stated that, after injuring her back during basic training, she injured it again in 1981, when she was thrown off of a truck that turned over at Fort Polk and she has experienced back pain ever since. In January 2020, the Veteran told the examiner, that she continued to experience back pain throughout the nineties and was prescribed physical therapy. In an April 2020 statement, she indicated that she has had back pain since her discharge from service and the pain has gotten worse over the years. The Board finds these statements competent and credible. Evidence against the claim includes a January 2020 VA examination report, in which the examiner opined that the Veteran’s lower back disability was less likely than not caused by an in-service injury. He cited a lack of service treatment records (STRs) documenting complaints, diagnoses or treatment for back pain during the time the Veteran was in active duty. He also found that post-service medical records indicated that the Veteran’s lower back pain could be associated with various etiologies, including gynecological issues or maintaining employment where she has work on her feet constantly. However, the examiner did not take into account the Veteran’s lay statements as to her back injuries during service and her continuous symptoms of back pain since leaving service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). Moreover, the examiner mischaracterized the record, stating that the Veteran did not seek medical attention for her back until 2002. However, the record contains numerous medical treatment reports establishing that the Veteran sought treatment consistently treatment for lower back pain since her discharge from service. As the opinion is factually inaccurate it is inadequate and of no probative value. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). As noted above, the Veteran’s lay statements regarding her back pain are competent and credible, and the lack of medical evidence of low back symptoms in the years following service fatal to the Veteran’s service connection claim. Buchanan, 451 F.3d at 1336 (“If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran’s ability to prove his claim of entitlement to disability benefits based on that competent lay evidence”).   There is an inadequate nexus opinion weighing against the claim and competent, credible lay evidence in support. While the Board could remand the claim for another medical opinion, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The evidence is, thus, at least evenly balanced as to whether the Veteran’s current lower back disability is related to an in-service back injury. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, service connection is warranted for lower back disability. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.K. Donaldson, 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.