Citation Nr: 21012219 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-66 296 DATE: March 3, 2021 ORDER Entitlement to service connection for a back disability is granted. FINDING OF FACT The probative evidence of record regarding the etiology of the Veteran’s current back disability is in equipoise. CONCLUSION OF LAW The criteria for service connection for a back disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from April 2003 to April 2007. In February 2020, the Veteran testified before the undersigned at a Board hearing held via videoconference. A transcript of that hearing is of record. 1. Entitlement to service connection for a back disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran diagnosis of IVDS was confirmed in VA Back (thoracolumbar spine) Conditions examinations completed in December 2014 September 2016. The Veteran’s service treatment records (STRs) note an in-service back in jury in March 2006, and complaints of recurring back pain noted in the Veteran’s December 2006 report of medical history prior to separation. At issue in the Veteran’s claim is whether his current back disability is related to the documented the in-service injury. In a February 2020 hearing, the Veteran testified that he injured his back during his period of active service while working on an aircraft carrier deck. The Veteran further testified that his symptoms of back pain continued periodically following his completion of active service. The Veteran is competent to report symptoms observable to a layperson, including the onset of back pain. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Board find that the Veteran’s testimony regarding his in-service injury and continuity of symptoms are credible and competent evidence in favor of the Veteran’s claim for service connection. The Veteran has also submitted numerous lay statements from former service members, co-workers, and family members discussing the Veteran’s in-service injury and continued symptoms of back pain since his completion of active service. The submitted lay statements are competent and credible evidence in favor of the Veteran’s claim. In March 2020, the Veteran submitted a medical opinion concerning the etiology of his current back disability. The March 2020 was completed by the Veteran’s treating physician. The March 2020 medical opinion states that the Veteran’s current back disability was a result of his in-service injury. The Veteran also submitted a February 2020 treatment note from the same physician discussing the Veteran’s military medical history including the in-service injury. Further the treatment note discussed the Veteran’s continued symptoms following his period of active service. Finally, the treatment note states, “[the Veteran] has had no other injuries to explain his pain other than the injuries sustained while in the Navy.” The Board finds that the March 2020 medical opinion combined with the February 2020 treatment note from the Veteran’s treating physician is competent and credible. This is highly probative evidence in favor of the Veteran’s claim for service connection. Conversely, following a December 2014 VA Back Conditions (thoracolumbar spine) examination, the VA examiner determined it was less likely than not that the Veteran’s current back disability was incurred during or caused by his period of active service. The VA examiner reasoned: Although a lower back injury is documented in the STRs in 2006, there is no documentation of chronic back pain symptoms or treatment encounters after the initial event. In review of the non-government medical treatment records, there is no documentation from the Veteran's primary care physician regarding this condition. This would be important in terms of providing a history of the onset of symptoms and mechanism of injury at the time of medical evaluation and would address the question of either a continuation of back symptoms after service discharge versus any intervening injury, event or circumstance. At least a 2-year lapse of time is noted between separation and the Veteran first seeing his PCP. Progress notes from the treating neurosurgeon likewise provides no historical information. The VA examiner’s opinion is thorough and well-reasoned. The Board finds this medical opinion to be highly probative evidence against the Veteran’s claim for service connections. The Board notes that the Veteran received a VA Back Conditions (thoracolumbar spine) examination in September 2016. Following examination, the examiner concluded that it is less likely than not that the Veteran’s back disability was related to service. The opinion notes that the Veteran’s STRs are “silent for any chronic low back conditions.” The absence of treatment records cannot be the sole basis for the denial of a service connection claim. See Dalton v. Peake, 21 Vet. App. 23 (2007). Accordingly, the Board finds that the September 2016 examination and medical opinion is inadequate and will not be considered in determining the Veteran’s claim for service connection. Based on the evidence of record, the Board finds that the probative medical of record regarding the etiology of the Veteran’s current back disability is in equipoise. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence is in “relative equipoise, the law dictates that the Veteran prevails.” Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board finds that entitlement to service connection for a back disability, is warranted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, 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.