Citation Nr: 21009641 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-11 142 DATE: February 23, 2021 ORDER Entitlement to service connection for a low back disability is granted. REMANDED Entitlement to special monthly compensation based on aid and attendance/housebound is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his low back disability is at least as likely as not related to service. CONCLUSION OF LAW The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1975 to March 1978. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from December 2012 and May 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In January 2017, the Veteran testified before the undersigned at a Board hearing. A transcript of the hearing is associated with the claims file. These matters were previously before the Board in February 2018 and August 2020 when they were remanded to the Agency of Original Jurisdiction (AOJ) for a VA examination. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for a low back disability The Veteran contends his low back disability is due to his active duty service. First, there is evidence of a current disability. The Veteran has been diagnosed with degenerative arthritis of the spine and intervertebral disc syndrome. See October 2020 VA examination. Second, there is evidence of an in-service event. The Veteran’s service treatment records support his Board hearing testimony of falling from his bunk and injuring his back on a foot locker in September 1975. Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s low back disability was causally related to his active duty service. Specifically, a March 2017 private examiner, who was the Veteran’s primary care physician for years, found that the Veteran’s low back disability was the result of his time in service. The law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “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. 38 U.S.C. § 5107(b). Although there is evidence against the claim, including VA examinations, the Board finds the evidence is of limited probative value as it relies on the absence of treatment records from service. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Layno v. Brown, 6 Vet. App. 465, 470 (1994). Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). Upon weighing the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran has a low back disability which is due to his period of service. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran’s favor, a grant of service connection for a low back disability is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’.... [I]f... the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). Accordingly, service connection is granted. REASONS FOR REMAND Entitlement to special monthly compensation based on aid and attendance/housebound is remanded. The Board notes that the Veteran has not been afforded a VA examination specifically addressing the question of whether the Veteran’s service-connected low back disability requires a permanent need for regular aid and attendance. See 38 U.S.C. §§ 1114 (l)-(t), 5103A (d). Accordingly, a remand is necessary to obtain a VA examination to address the question of permanent need for regular aid and attendance due to his service-connected low back disability. The Board is cognizant that the Veteran has submitted evidence in support of his claim for special monthly compensation based on the need for aid and attendance. See VA 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, received June 2015, May 2015, August 2014, and February 2014. However, there is ambiguity within such evidence that requires further clarification such as referencing medical conditions the Veteran’s is not service connected for. Accordingly, clarification of the medical evidence is needed. 38 C.F.R. § 3.326 (a). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine if he meets the requirement for aid and attendance due solely to his service-connected disorders. All pertinent evidence of record must be made available to the examiner for review. Any indicated studies should be performed. The examiner must address whether it is at least as likely as not that, due only to his service-connected disabilities, the Veteran is unable to dress or undress himself; is unable to keep himself ordinarily clean and presentable; requires frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; is unable to feed himself through loss of coordination of the upper extremities or through extreme weakness; is unable to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his daily environment. A complete rationale for all opinions should be provided. The examiner is asked to discuss the medical evidence of record, including that contained in the VA Form 21-2680’s and the Veteran’s Board hearing testimony when rendering his/her report. (Continued on the next page)   2. Thereafter, readjudicate the claim at issue on appeal. If the benefit sought remains denied, furnish the Veteran and his representative with a Supplemental Statement of the Case. Allow an appropriate period for response before returning the appeal to the Board for review. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed, 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.