Citation Nr: 21015227 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 18-28 163A DATE: March 17, 2021 ORDER Service connection for a lumbar spine disability is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether a lumbar spine disability had its onset in or is otherwise related to the Veteran’s period of service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1960 to December 1988. This case is before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter for further development in January 2019 and December 2020. The record demonstrates that the criteria for service connection for a lumbar spine disability are met. The Veteran contends his chronic back pain began during his tour of duty in a fixed-wing Navy Aircraft Squadron aboard USS Midway as a result of the impact from performing 273 aircraft carrier landings, often described as “controlled crash” landings (going from 140 mph to a complete stop in less than two seconds). He also notes, an aviation career was his lifelong dream, and it was his perception that the pursuit of a diagnosis or treatment each time he experienced back pain would jeopardize his opportunity to continue, so he did not complain and self-medicated the back pain with over-the-counter medication. See 06/08/2018, Correspondence. The Board has found this assertion competent and credible. Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation while in active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Lay evidence, when credible, is competent to establish the presence of continuity of symptomology for a claimed disability during and since separation from active service and may provide sufficient support for a claim of service connection. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). The absence of treatment shown within service treatment records is an insufficient rationale for a negative nexus opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A VA examiner’s failure to consider the veteran’s testimony when formulating his or her opinion renders that opinion inadequate. Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). When 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 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. The record contains a competent diagnosis of degenerative disc disease; accordingly, competent evidence of a current disability is found. 10/06/2015, C&P Exam. In February 1974, the Veteran was awarded a medal for meritorious achievement in aerial flight as a naval flight officer of propeller-driven aircraft while attached to a Carrier Airborne Squadron embarked in USS Midway from July 1972 to February 1973 engaged in combat operations in Southeast Asia and the successful completion of one hundred direct combat support missions. 04/29/2015, Military Personnel Record. Service treatment records include a February 1978 note where the Veteran underwent x-rays of the lumbar spine. An April 1978 x-ray report shows a small exostosis in association with the left side of the 4th lumbar vertebral body, which would require a lumbosacral spine scan for further evaluation. 06/08/2018, Medical Treatment Record–Government Facility. The Veteran maintains that these service treatment records were in response to his complaints of back pain. The Veteran provided a medical research article, Anne Hoiberg & Ralph G. Burr, Assessing the Health Risks of Carrier Landings in U.S. Navy Pilots, Naval Health Research Center, Report No. 85-24 (1985), which found pilots with considerable carrier landing experience were at increased risk for back disorders as the jolt associated with landing a fixed-wing plane on a carrier might produce wear and tear on the back after several hundred landings. See 06/08/2018, Military Personnel Record. An October 2015 VA examiner determined the disability was less likely than not incurred in or caused by the claimed in-service injury. He provided the rationale that there is no evidence of treatment or management for chronic pathology of the lumbar spine disability, and the Veteran has degenerative arthritic changes to his lumbar spine, not unlikely in his age group. 10/06/2015, C&P Exam. In December 2020, the October 2015 VA examiner noted the record is silent for a chronic lumbosacral spine-related pathology or diagnosis during his active duty. Following discharge, there is no documentation for a lumbosacral spine pathology, diagnosis, or management proximate to his military service. The record is silent for any additional medical records related to his lumbosacral spine since his last VA examination in 2015. 12/10/2020, C&P Exam. The October 2015 VA examiner provided an addendum opinion in January 2021 addressing the Veteran’s in-service lumbar spine evaluation noting no further notation thereafter, his separation exam was silent for any pathology of the spine, and this examiner ordered the only spine imaging on file in 2015, which did not mention specific findings to the L4 vertebral body. The examiner also noted exostosis is a benign, nonmalignant growth of a new bone or cartilage over an existing bone. 01/11/2021, C&P Exam The Board acknowledges the VA examiner’s opinions that it is less likely than not that the lumbar spine disability had its onset in or is otherwise related to the Veteran’s periods of service, but assigns those opinions diminished probative weight as they fail to discuss the Veteran’s contention that the lumbar spine pain had its onset during service with continued symptoms since and do not address the study stating Navy pilots conducting many aircraft carrier landings are at an increased risk for back disorders. See Stefl, 21 Vet. App. at 124. The October 2015 VA examiner provided three opinions regarding the etiology of the lumbar spine disability with a notice of the adequacy requirements. Still, all the opinions were nevertheless inadequate. They all failed to consider the Veteran’s lay statements and medical studies and based the rationales on the absence of treatment evidence. See Miller, 32 Vet. App. at 257; Buchanan, 451 F.3d at 1337. The Veteran has described experiencing symptoms of back pain since service; those symptoms are attributed to a lumbar spine disability, as diagnosed by the VA examiners. Inasmuch as the sole basis for the negative nexus opinions is the lack of medical documentation, it is reasonable to assume that had the examiner considered the Veteran’s lay statements and medical research addressing the effects of many aircraft carrier landings; he would have provided a positive nexus. Again, both the Board and RO have attempted on numerous occasions to have the VA examiner consider the lay evidence of record. The Veteran’s reports of ongoing back pain since his time conducting aircraft carrier landings are consistent with the evidence of record and tend to support a nexus to his in-service injury. His account of recurrent back pain since service is both competent and credible. Any doubt on this material issue is resolved in the Veteran’s favor, and service connection for a lumbar spine disability is warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.