Citation Nr: 21014806 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-01 010 DATE: March 15, 2021 ORDER Entitlement to service connection for a lower back condition is granted. FINDING OF FACT The Veteran’s lower back disability is at least as likely as not etiologically related to his active duty service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a lower back condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1988 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). Service Connection—Legal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Lower Back The Veteran seeks service connection for a lower back disability which he contends originated in service. The medical evidence confirms that the Veteran has current diagnoses of degenerative disc disease and degenerative joint disease of the lumbosacral spine. See December 2016 VA Back Conditions examination. The central issue that must be resolved is whether the Veteran’s current disabilities originated in service or is otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially, the Board notes that the Veteran’s service treatment records (STRs) contain complaints of, and treatment for, lower back pain. Specifically of note are a September 1990 treatment record for lower back pain and muscle spasms after an injury lifting furniture and a June 1996 report of medical history where the Veteran reported he experiences recurrent back pain. The Veteran additionally submitted private treatment records from shortly after his separation from military service which diagnosed him with “lumbar disc disease.” The Veteran was initially afforded a February 2015 VA Back Conditions examination. The examiner noted that the Veteran was experiencing lower back pain but indicated that he could not make a diagnosis at that time. The examiner further opined that there was insufficient evidence to opine on a causal relationship to the Veteran’s active duty service. The Veteran was then provided with a November 2016 VA Back Conditions examination. The examiner diagnosed the Veteran with lumbsacral degenerative joint disease and degenerative disc disease. The Veteran reported that he hurt his back moving furniture while in active duty. He additionally reported falling off a ladder. The examiner noted that the Veteran uses a back brace, a TENS unit, and receives physical therapy for his back condition. The examiner noted that the Veteran currently experienced pain, and that this pain was related to his current conditions. However, the examiner opined that the Veteran’s claimed back condition was less likely than not (less than a 50 percent probability) due to the Veteran’s military service. The rationale provided was that the Veteran’s STRs do not indicate a chronic back condition as no long-term permanent profile was listed following his back injury. Additionally, the examiner noted that the Veteran’s civilian records note degenerative disc disease, but those records are dated 7 years after he left military service. Additionally, the examiner noted that the Veteran checked that he was not experiencing recurrent back pain on his separation examination. During his March 2021 Board hearing, the Veteran testified that while in service he was in a motor vehicle accident where he was pinned from the waist down by a turret and was caught at the shoulder. The Veteran noted that he was treated by medics, put on light duty, and has continued to experience back pain since this accident. The Veteran’s STRs confirm that he was in a motor vehicle accident. The Veteran reported that he said no to recurrent back pain on his exit examination because he was not experiencing pain at the time of his separation examination. The Veteran further noted several other injuries to his back in service, including an injury moving furniture and an injury falling off a ladder. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has “unique and readily identifiable features” that are “capable of lay observation.” See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The November 2016 VA examiner’s opinion was based on a lack of evidence that the Veteran’s back pain was persistent from his initial injury. The Board notes, “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. at 496. As noted below, the Veteran has offered competent and credible evidence of continuity of symptomatology. Further, the Board notes that the examiner only discussed the Veteran’s treatment notes regarding the initial injury and did not seem to consider the further documentation of chronic low back pain throughout the Veteran’s medical record or the Veteran’s competent lay statements regarding continuity of symptomatology. Therefore, the medical opinion is based on a lack of review of the entire treatment record regarding the Veteran’s low back and is of limited probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that the Board may afford weight to an opinion based on factors such as reasoning employed, whether the opinion is based on sufficient facts and data, and whether the opinion is based on medical principles applied to the facts of the case). Additionally, the VA examiner acknowledged that the Veteran was experiencing low back pain, and that the pain was related to his current conditions. The Board has considered the Veteran’s lay statements in support of his claim. He is competent to report symptoms, such as pain, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In this case, the Veteran has reported that he experienced low back pain since his injury in service, which has persisted ever since. The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Additionally, the Veteran’s lay statements are consistent with other medical evidence in the record. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran’s own reports of experiencing ongoing pain to be at least as probative as the above-noted VA examiner’s findings, as the Veteran is truly the only person capable of such observation. Given the VA examiners’ opinions, the Veteran’s competent lay statements, the private medical records, and the Veteran’s STRs, the Board finds that the evidence of record is approximately evenly balanced as to whether the Veteran’s low back disability is at least as likely as not etiologically related to his active duty service. The evidence is thus at least evenly balanced as to whether the Veteran’s current low back disability is related to the in-service reports of, and treatment for, his lower back. 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 a low back disability is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.