Citation Nr: 21013303 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 19-29 679 DATE: March 9, 2021 ORDER Service connection for a low back disability is granted. FINDING OF FACT The probative evidence of record is at least in equipoise as to whether the Veteran’s low back disability is etiologically related to in-service injuries. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from July 1972 to December 1978. The Veteran testified before the undersigned Veterans Law Judge during a February 2021 hearing.  This matter is on appeal from a June 2017 rating decision.  1. Low Back Disability The Veteran contends that he has a low back disability that is etiologically related to his active duty service. Service connection may be established 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. Regulations also provide that 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). An August 1978 service treatment record notes the Veteran’s report of a one-day history of low back pain; the treatment provider diagnosed muscle spasms. At the time of his September 1978 separation examination, the Veteran reported no history of recurrent back pain. A January 2008 private treatment record notes the Veteran’s report of a one-week history of constant back pain and a prior history of intermittent back pain. The physician diagnosed acute lumbar strain. The Veteran was afforded a VA examination in June 2017. The clinician diagnosed lumbar spondylosis and opined that it was less likely than not incurred in or caused by active duty service because the Veteran denied a history of recurrent low back pain at the time of his separation examination and because there was “no documentation of a lower back condition in the 12 months immediately after military service.” This is an inadequate rationale. The Veteran was afforded an additional VA examination in March 2019. The clinician diagnosed lumbar spine degenerative disc disease, spinal stenosis, and concentric disc bulge. The clinician opined that the Veteran’s low back disability was less likely than not incurred in or caused by active duty service, solely because the Veteran denied a history of recurrent low back pain at the time of his separation examination.” This is less of a rationale than was given for the June 2017 VA medical opinion and is therefore also inadequate. The Veteran submitted an August 2017 medical opinion by his longtime private treating physician, who also wrote the January 2008 private treatment record. The physician noted the Veteran’s report that his 1978 injury was “a result of heavy lifting while at work,” that “[o]ver the years he has had some recurring exacerbations,” and that he was referred to a spine specialist in 2008 who “noted that this was a long standing issue.” The physician opined that it “is reasonable to correlate [the Veteran’s] current condition is related to the 1978 injury.” The Veteran has also submitted a January 2019 medical opinion by the same private physician, who opined that it is at least as likely as not that the Veteran’s low back disability is the result of his military service because “the trauma he sustained in 1978, as a result of heavy lifting,” “resulted in a disc injury that evolved into a chronic back condition of multi-level degenerative disc disease, with associated spinal stenosis at several levels.” He also submitted a September 2019 medical opinion by the same private physician, who added that his 1978 injury “resulted in more than probable inflammation, micro-motion instability and injury to the muscles, ligaments, and lumbar disc as well,” which “has resulted in an ongoing condition of muscle tension, recurring muscle spasms and local tenderness of the lower back.” For these reasons, the physician opined that the Veteran’s 1978 injury “is a causative factor for developing degenerative flare-ups of intense muscle spasms and pain.” In a September 2019 statement, the Veteran reported that, because his in-service diagnosis was a muscle spasm, he treated himself with over-the-counter medications after his separation from service, but the pain increased over time and he eventually sought treatment. The two VA examiners found that a nexus to active duty service was less likely than not and the private physician found that a nexus was at least as likely as not. The Board has found the VA examiners’ opinions inadequate. The private examiner’s January 2019 and September 2019 opinions, by contrast, are collectively compelling. In light of the totality of the circumstances, and after resolving all reasonable doubt in his favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s low back disability is etiologically related to his active duty service. Accordingly, the Board finds that granting service connection for a low back disability is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.