Citation Nr: 21015106 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 10-33 256 DATE: March 16, 2021 ORDER Entitlement to service connection for a low back disability, to include arthritis, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, a low back disability was incurred in active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have been met.  38 U.S.C. §§ 1110, 1131, 5017(b); 38 C.F.R. §§ 3.102; 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1980 to November 2005. He testified before the undersigned Veterans Law Judge at a December 2020 Board hearing. Service Connection – Low Back Disability Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection, three elements must be established: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury, which is often referenced as the “nexus” element. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 38 U.S.C. § 5107(b) states that “[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, [VA] shall give the benefit of the doubt to the claimant.” 38 C.F.R. § 3.102 states that “[w]hen…a reasonable doubt arises regarding service origin…or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.” Analysis Upon review, and resolving reasonable doubt in the Veteran’s favor, the Board finds that entitlement to service connection is warranted for a low back disability. The Veteran filed a claim in February 2009 for “chronic [and] severe arthritis in my lower back” and also noted “pinched nerve in back.” In the most recent June 2015 Supplemental Statement of the Case (SSOC), the agency of original jurisdiction (AOJ) characterized the issue on appeal as “arthritis of the lower back.” At the December 2020 Board hearing, the issue was characterized as service connection for “a low back condition.” With respect to the first element of direct service connection, evidence showed a low back disability. See August 2010 VA Treatment Record (containing results of lumbar x-rays and noting an impression of “[m]ultilevel degenerative disc disease”); September 2010 VA Back Examination Report (noting a diagnosis of “Intervertebral Disc Syndrome with degenerative arthritis changes” and an accompanying lumbosacral spine x-ray report that noted an impression of degenerative joint disease). As such, the Board finds that the first element of direct service connection has been met. With respect to the second element of direct service connection, the Veteran’s primary contention has been that his low back disability is related to an in-service event where, essentially, he fell through a roof in Kuwait in approximately 1996. The Veteran variously reported this during the course of the appeal, to include in medical treatment records and under oath at the December 2020 Board hearing. See, e.g., December 2020 Board Hearing Transcript, Page 2 (“I was in the desert from ’95 to ’97…I was in Kuwait. I got fired upon by a sniper…I was on top of a building, so I started to run. I jumped to the next lower level. I took about two steps running and the roof went through. I fell about four meters and hit a beam on the way down…I was in pretty bad shape…I hurt my back”). The Veteran submitted a January 2008 buddy statement from C.P., who essentially described witnessing most of the reported event. Also, while the Veteran’s service treatment records (STRs) did not contain treatment related to the Veteran’s low back, the Veteran variously reported experiencing back symptoms and receiving treatment related to his back during his active service following the fall. See, e.g., July 2015 VA Form 9 (describing in-service treatment related to his back); January 2010 notice of disagreement (NOD) (“my back pains and the severe shooting pains I get from the pinched nerve and have had for years since I left the desert in 1997 has not gone away and still occurs on a fairly regular basis as it has for years now”). Also, as will be outlined further below, the Veteran submitted statements from people who knew him during his active service and such statements included reports of the Veteran experiencing back symptoms and receiving treatment related to his back during his active service. The Board also notes that the AOJ accepted the occurrence of the reported in-service fall. See June 2008 Rating Decision (granting entitlement to service connection for a right ankle disability based on a positive nexus opinion linking such disability to the Veteran’s “fall through a roof while under fire”); November 2009 Statement of the Case (SOC) (“Your letter dated November 9, 2009 referenced our rating decision noting you injured your back in Kuwait. That has been confirmed”). The Veteran additionally contended that, essentially, his low back disability was related to sleeping on the desert floor for extended periods of time and carrying heavy loads. See, e.g., July 2015 Veteran Statement (referencing “sleeping on the desert floor for months on end” and “carrying heavy combat packs”). Overall, the Board finds that the second element of direct service connection has been met. With respect to the third and final element of direct service connection, a nexus between the Veteran’s current low back disability and his active service, the Board notes that VA has not obtained an opinion as to this issue. While the Veteran was afforded a VA examination in September 2010, no direct service connection opinion was obtained. The Veteran, however, submitted two statements that related to the issue of nexus. First, of record is an August 2009 statement from F.N. In an earlier May 2008 statement, F.N. referenced being the “Chief of Orthodontics” in 2001 and included after his signature “DDS, MS,” indicating he had Doctor of Dental Surgery and Master of Science degrees. In the August 2009 statement, it was stated that “[i]n my medical/dental opinion the current medical condition of a former consult patient, [the Veteran], concerning his chronic lower back pain, arthritis, back stiffness and decreased mobility is still ongoing and is related to a combat incident in late August of 1996…and subsequent events occurring during the [V]eteran’s military service.” The statement referenced that the Veteran “inquired about lower back pain and stiffness and other problems when sitting and sleeping in 2000-01. He mentioned on his visit that he feel through a roof of a building…and injured his back.” It was stated that “I…remember he was given medications.” Second, of record is a January 2010 statement from K.S., who noted that she was a registered nurse and a Family Nurse Practitioner. See generally Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (“A nurse practitioner, having completed medical education and training, thus fits squarely into the requirement of [38 C.F.R] § 3.159(a)(1) as one competent to provide diagnoses, statements, or opinions”). She reported knowing the Veteran since 1997. She stated that “I have witnessed first-hand, the effects of his previous injuries that occurred while he was on active duty” and she described her observations of, and interactions with, the Veteran over the years. She stated that she knew that the Veteran was seen for medical treatment during his active service. She referenced that the Veteran “has commented many times…about falling through a roof, when he was fired upon from snipers” and that “[h]e also recalls having to sleep on hard surfaces and/or ground.” K.S. further stated that “[i]n conclusion, it is obvious to me, that [the Veteran] sustained an injury to his back…when he fell through a roof during this sniper attack. As a result, he continues to have progressive worsening of pain.” It was further stated that the Veteran “simply dealt with the pain then, and has dealt with chronic pain, ever since. While arthritis is to be expected, I recognize that for [the Veteran], the pain in his…back, is actually debilitating for him.” In addition, the Veteran provided statements as to what his VA doctors had told him about his back. In this regard, he stated in a June 2010 statement that the “VA medical center found the arthritis and such in my back” and “Dr[. T.D.] said these are old injuries.” He also stated in an August 2010 statement that the “doctors and the Hampton Medical Center ha[ve] said; arthritis in the back from lifting and moving heavy AM 2 matting....sleeping on the ground and the fall through the roof in Kuwait from the sniper attack.” VA treatment records included a July 2010 VA primary care treatment record from Dr. T.D. that noted a diagnosis of “chronic low back pain with more pain and [history of] fall.” An April 2013 VA primary care treatment record from Dr. J.B. noted a diagnosis of “chronic back pain, old injury.” Upon review of the record and particularly the evidence outlined, and resolving reasonable doubt in the Veteran’s favor, the Board finds there to be sufficient evidence to show that the Veteran’s current low back disability has a nexus to his active service. As such, all three elements of direct service connection have been met. (Continued on the next page)   In sum, the Board finds that, resolving reasonable doubt in the Veteran’s favor, a low back disability was incurred in active service. As such, the Board concludes that the criteria for entitlement to service connection for a low back disability have been met and, to this extent, the Veteran’s claim is therefore granted.  38 U.S.C. §§ 1110, 1131, 5017(b); 38 C.F.R. §§ 3.102; 3.303. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.