Citation Nr: 21015188 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 06-24 541 DATE: March 16, 2021 ORDER Entitlement to service connection for a low back disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the evidence of record demonstrates it is at least as likely as not that the Veteran’s low back disability is etiologically related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1964 to April 1966. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2003 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board, most recently, in October 2018 for additional development. Specifically, the Board requested that the RO obtain an addendum medical opinion. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. The Veteran provided testimony at a June 2010 hearing before a Veterans Law Judge (VLJ). A copy of the transcript has been associated with the claims file. After the VLJ who held the June 2010 hearing retired from the Board, the Veteran was offered the opportunity to appear at another hearing before a different VLJ. The Veteran provided testimony at a December 2020 hearing before the undersigned VLJ. A copy of the transcript has been associated with the claims file. Entitlement to service connection for a low back disability. The Veteran seeks service connection for a low back disability. Specifically, the Veteran asserted that he injured his low back in service due to heavy lifting of ammunition that caused him to strain his back. See June 2010 and December 2020 Hearing Transcripts. The Veteran also asserted that his low back disability is secondary to his service-connected bilateral knee disability. See July 2004 Correspondence. Generally, service connection may be established on a direct incurrence basis for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (1) existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection is granted where a service-connected disability causes or aggravates a nonservice-connected disability. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) the existence of a chronic disability in service or during an applicable presumption period under 38 C.F.R. § 3.307 and present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Under 38 C.F.R. § 3.303(b), continuity of symptomatology is an alternative route to establish service connection for specific chronic diseases, including arthritis, and can only be used in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The evidence of record demonstrates the Veteran was diagnosed with degenerative arthritis of the spine, lumbar spondylosis, intervertebral disc syndrome (IVDS), and chronic low back pain. See November 2011 VA treatment records; February 2012 VA examination; October 2013 VA examination; August 2016 VA examination. Therefore, presence of a current disability has been met. See Shedden, 381 F.3d at 1167. In regard to an in-service event, injury, or disease, the Board finds that the Veteran has consistently reported injury to his back in service; specifically, he has reported back pain due to lifting heavy ammunition. Further, the Veteran is competent to provide lay evidence of the existence of symptoms that are capable of lay observation and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds that the Veteran is competent and credible to assert that he experienced observable back pain in service especially in light of his statements to medical providers. For example, the Veteran has consistently reported that lifting ammunition caused his low back pain that began in service. See February 2012, October 2013, August 2016, and June 2019 VA examinations. Furthermore, the Board notes that where it is established that a veteran served in combat and that veteran asserts service connection for injuries or disease incurred or aggravated in combat, absent evidence to the contrary, any disability incurred during the combat is presumed. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran testified that he sought treatment for his back in the field while serving in the Republic of Vietnam and records were not properly kept at the time. See December 2020 Hearing Transcript. Though the Veteran’s service treatment records are silent for complaints, treatment or diagnosis of any back disabilities, the Veteran’s report of in-service symptoms of low back pain are credible and represents probative evidence in support of the claim. Indeed, given that the Veteran served in combat, under 38 U.S.C. § 1154(b) the adjudicative evidentiary requirements for determining what happened in-service are relaxed for combat veterans. The Board acknowledges that there is no adequate medical opinion specifically stating that the Veteran’s low back disability is related to his active duty service. In this regard, the Veteran was afforded an initial VA examination in October 2003. The Veteran reported low back pain dating back to the early 1980’s. See October 2003 VA examination. The VA examiner did not opine as to whether the Veteran’s low back disability was at least at as likely as not etiologically related to the Veteran’s active duty service. Id. Therefore, the October 2003 VA examination is inadequate for decision making purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Veteran was afforded a VA examination in February 2012. The VA examiner diagnosed the Veteran with lumbar spondylosis and acknowledged the Veteran’s reports of lifting ammunition in service that caused his low back pain. See February 2012 VA examination. The VA examiner opined that it was less likely than not that the Veteran’s low back disability was incurred in or caused by service. Id. As rationale, the VA examiner mostly relied on an absence of entries related to back complaints or treatment in service. Id. However, the VA examiner stated that the Veteran’s service has likely contributed to a degenerative change but should not be solely attributed to it. Id. In November 2012, a VA orthopedist noted the Veteran had sustained injury to his low back lifting heavy loads of ammunition, was treated there, and his present spinal problem was therefore service connected. See November 2012 VA treatment record. In an October 2013 VA examination and April 2014 VA addendum medical opinion, the VA examiners provided negative nexus opinions; however, the rationale relied heavily on the absence of any complaints, or treatment in the Veteran’s service treatment records. In September 2014, the Board denied the Veteran’s claim to entitlement to service connection for a low back disability. However, a February 2016 memorandum decision by the U.S. Court of Appeals for Veterans’ Claims (CAVC) vacated the Board’s September 2014 denial based on a finding that the Board failed to consider the November 2012 VA treatment record and noting the February 2012 VA medical opinion was confusing. Therefore, the October 2013 VA examination and April 2014 addendum medical opinion are inadequate for decision making purposes. See Nieves-Rodriguez, 22 Vet. App. at 302. The Veteran was afforded additional VA examinations in August 2016 and June 2019. In August 2016, the Veteran was diagnosed with degenerative arthritis of the spine, spondylosis and IVDS. See August 2016 VA examination. The VA examiner opined that it was less likely than not that the Veteran’s low back disabilities were caused by or aggravated by his active duty service. Id. As rationale, the VA examiner relied on an absence of records indicating back problems during service. Id. The VA examiner also stated there were no supporting records that he had chronic back pain from 1966 to 2012. Id. However, the VA examiner did not consider the Veteran’s statements of experiencing back pain since service and prior medical records demonstrating complaints of back pain prior to 2012. For example, as noted, the Veteran testified about back pain beginning in service and continuing since service. See December 2020 Hearing Transcript. Therefore, the August 2016 VA examination is inadequate for decision making purposes. See Nieves-Rodriguez, 22 Vet. App. at 302. Additionally, a June 2018 CAVC order granting a Joint Motion for Partial Remand (JMPR) found the Board’s June 2017 decision denying service connection failed to address the November 2012 VA treatment record. The Veteran was afforded another VA examination June 2019, but the it is inadequate for similar reasons. The June 2019 VA examiner did not adequately address the November 2012 VA treatment record and relied on the absence of medical records in service despite the Veteran’s lay statements. Therefore, the June 2019 VA examination is inadequate for decision making purposes. See Nieves-Rodriguez, 22 Vet. App. at 302. The Board notes that a Veteran may be competent and credible to provide a lay opinion as to the nexus or etiology of a disability depending on the nature of the disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. Moreover, in appropriate situations, the Veteran can report symptoms to establish the link between an in-service incurrence and subsequent diagnosis of a disability. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. In this case, the Board finds the evidence of record is in relative equipoise. The Board reiterates that the Veteran has consistently and competently reported experiencing symptoms, including low back pain, since his service and combat in Vietnam to medical providers. VA treatment records reflect the Veteran’s longstanding complaints of low back pain. For example, a March 2013 VA treatment record notes the Veteran had chronic low back pain for over 45 years and multiple chronic degenerative changes with the lower spine. Additionally, the November 2012 VA treatment record weighs in favor of the Veteran as the orthopedist specialist found the Veteran’s low back disability to be service-connected. The Board notes there is no evidence to clinically distinguish between all of the symptoms of the Veteran’s low back disabilities. Thus, in applying the benefit of the doubt doctrine, the Board attributes the Veteran’s complaints of low back pain since service to his current low back disabilities, including degenerative arthritis of the spine. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). As degenerative arthritis of the spine is one of the chronic disabilities which may be found to be related to service based on continuity of symptomatology, the Board need not remand the claim for another opinion. See 38 C.F.R. § 3.309(a). In sum, although there are no probative opinions addressing the etiology and onset of the Veteran’s low back disability, the Board finds that the Veteran’s credible and consistent lay statements regarding the in-service onset of symptoms that have continued since service are entitled to significant probative weight and sufficient to establish service connection in this instance. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304. Accordingly, after resolving any doubt in favor of the Veteran, the Board finds that the evidence is at least in relative equipoise and supports a grant of service connection for a low back disability. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As service connection is being granted on a direct incurrence basis, a greater benefit than a grant on the basis of secondary service connection, there is no need to address secondary service connection. See 38 C.F.R. § 3.310. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, Associate 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.