Citation Nr: 21013839 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-50 417 DATE: March 10, 2021 ORDER Entitlement to service connection for thoracolumbar spine degenerative disc disease (DDD) is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s current thoracolumbar spine DDD is related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for thoracolumbar spine DDD 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 on active duty from May 1975 to January 1977. This case is before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a June 2015 rating decision of the VA Regional Office (RO), which denied service connection for lumbosacral spine disability. In March 2021, the Veteran testified at a Virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has not yet been associated with the claims file, but one is not necessary because the benefit sought is being granted in full. Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air 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 injury or disease; and (3) a relationship between the two. 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 service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service treatment records (STRs) from July 1976 through October 1976 showed that the Veteran was treated for lumbar strain. He reported developing low back pain while working on a flight line. He denied any trauma. He received a profile for back strain. In his December 1976 Report of Medical History, the Veteran endorsed recurrent back pain. The clinician noted recurrent back pain of unknown etiology. Contemporaneous clinical evaluation showed that the Veteran’s spine was clinically evaluated and deemed normal. In June 2015, the Veteran had a VA-contract examination with a nurse practitioner (NP). The NP diagnosed thoracolumbar spine DDD. The Veteran reported that in 1994 he fell and twisted his back. He had worked as a construction/ maintenance worker. He used a TENS unit and heat pack with some relief. Physical findings were reported. Notably, X-ray showed degenerative changes of the thoracic and lumbar spine. The NP furnished a negative medical opinion. She stated that the in-service back condition was acute and there was not evidence of chronicity of care. In August 2016, the Veteran had a VA pain management consultation. He reported having low back pain dating to a 1976 active duty injury. He later had a 1982 motorcycle injury affecting the left side of his body. Currently, he sought better pain control. In his September 2016 substantive appeal, the Veteran reported that he injured his back in 1976 while he worked on B-52 aircraft. He received military treatment and then continued private treatment after separation. He was unable to obtain the private medical records for treatment following service. For the following reasons, the Board concludes that service connection for thoracolumbar spine DDD is warranted. The disputed issue is whether there is a relationship between service and current thoracolumbar spine DDD. The Veteran is competent to report about low back pain and its history. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). He asserts that he first developed low back pain in service. STRs include numerous reports of treatment for low back pain beginning in July 1976. At separation, the Veteran reported recurrent back pain. In his September 2016 substantive appeal, the Veteran explained that he continued private treatment for back pain after separation but was unable to obtain these medical records. The Board considers these lay reports highly probative to show back pain symptoms starting in service that later manifested in the current thoracolumbar DDD diagnosis. Id. As to the June 2015 VA medical opinion, the NP rejected the Veteran’s reports based upon an absence of continuous treatment and STR entry referring to the back pain as acute. The Board finds this rationale to be flawed. Continuous treatment is not required. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Then, the NP’s rationale does not account for the Veteran’s report that he regularly sought treatment following separation, but these medical records are no longer available. As to her acute back pain characterization from the STRs, there are numerous entries for back pain treatment, which conflict with an acute assessment. Given these problems with the June 2015 VA-contract medical opinion's supporting rationale, including an inaccurate factual premise, it is of little, if any probative weight. 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”). The Board could remand the claim for another medical opinion but such 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 sufficient to decide the claim, as it is approximately evenly balanced as to whether the current back disability is related to the in-service back injury. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for thoracolumbar spine DDD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.10; Buchanan, 451 F.3d at 1335 (lay evidence may be sufficient in and of itself to substantiate a service connection claim). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.