Citation Nr: 21022786 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-31 762 DATE: April 19, 2021 ORDER Entitlement to service connection for a lumbar spine disability, to include degenerative joint disease, is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, it is at least as likely as not her lumbar spine disability is related to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disability, to include degenerative joint disease, are met. 38 U.S.C. §§ 1110, 7105; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1993 to November 1995. This appeal is before the Board of Veterans’ Appeals (Board) from a July 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of this case is as follows: In February 2020 the Board denied the Veteran’s claim of entitlement to service connection for a lumbar spine disability. However, the Veteran appealed her claim to the U.S. Court of Appeals for Veteran’s Claims (CAVC) and in November 2020 a Joint Motion for Remand (JMR) was issued after finding the Board’s February 2020 decision inadequate. Specifically, the JMR determined: (1) the VA did not fulfill its duty to assist the Veteran acquire outstanding records by only making one request and by not notifying the Veteran her records could not be acquired, (2) the Board relied on an inadequate VA medical examination in rendering the February 2020 decision, and (3) the Board did not address a theory of entitlement raised by the Veteran. Lastly, the JMR ordered the Board to acquire a new VA medical opinion to determine the nature and etiology of the Veteran’s lumbar spine disability. Generally, the Board is required to comply with CAVC orders; however, in this case, after the JMR the Board has reevaluated the evidence of record and the Board finds the evidence of record is sufficient to grant the Veteran’s claim rather than remand for further development. Thus, since this is a full grant of the benefit sought on appeal, the Veteran is not prejudiced by the Board’s actions. The Veteran seeks entitlement to service connection for a lumbar spine disability that she alleges began during active duty service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (1) the 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As the evidence of record was cited in the Board’s previous February 2020 decision, the following will not be a full recitation of the evidence of record. Turning to the evidence of record, the service treatment records (STRs) include January 1994 clinical record for complaints of lower back pain she had been experiencing for 2 weeks. In February and March 1994, she received individual sick slips for complaints of back pain. In May 1994, she received treatment for back pain due to a fall and from moving heavy boxes and also received an individual sick slip and was placed on 1 week of no physical training for back pain. In November 1994, she was treated for back pain after playing “floor hockey” and she also received an individual sick slip and was placed on 2 weeks of no physical training for back pain. In June 1995, the Veteran received 3 individual sick slips for complaints of back pain and received treatment for back pain on 2 other occasions. Also, in June 1995, she received an X-ray on her back which revealed, “Other than spasm in the lumbar spine, no abnormality is seen in the lumbsacral areas.” In September 1995 she received an individual sick slip for back pain. In July and August 2000, the Veteran underwent physical therapy for her back. A May 2004 MRI of her back reflected a “right side disc herniation at the L4-5 with possibility of a loose fragment behind the body of the L4 vertebra.” In November and December 2008, she received treatment for back pain and stated that “she has injured her back on three different occasions.” In April and November 2010, she also received treatment for back pain. An October 2013 MRI of her lower back revealed degenerative disc disease, moderate disc osteophyte, a moderate disc bulge, and an “annular tear in the posterior margin of the L1-L2 disc.” A July 2014 VA examination report included a review of the claims file and medical records, a recitation of the Veteran’s complaints and medical history, and physical examination results. The diagnosis was degenerative arthritis of the spine. The examiner opined that the lumbar spine disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In July 2015, she received treatment for back pain and reported her back pain was increasing. She also received treatment for back pain on 3 occasions in May 2016. During her third visit the examiner noted, “Degenerative disc disease and degenerative changes of the facet joints at L4-5 and L5-S1 as noted previously without significant change from a study dated 6/28/2013.” During the Veteran’s October 2019 Board hearing, she alleged that she fell from a 15-foot wall while in-service and that she has had chronic back pain ever since. Also, in October 2019, the Veteran’s daughter submitted a letter claiming that the Veteran’s health noticeably diminished after she was discharged from the military. In December 2019, the Veteran’s private physician provided a letter explaining that “I have reviewed [the Veteran’s] medical records dating from 1993 to the present as well as the contained physician statements and Ms. [REDACTED] account of her suffering. It is opined the Veteran’s current back condition is linked to an in-service incident.” Specifically, the examiner stated: “I believe that Ms. [REDACTED] problems clearly began with the fall during an obstacle run in the 1990’s and has slowly but decidedly progressed with progressive degenerative changes with repetitive strains due to musculoskeletal instability from her injuries.” It was further opined that “Ms. [REDACTED] VA materials and medical records clearly show that her back condition both began and was further aggravated during her time in military service. Ms. [REDACTED] narration of events is documented as fact in her medical records.” In November 2020, the JMR was issued by CAVC that determined the July 2014 VA examination was inadequate as it did not include an analysis of all available evidence at the time. After a review of the claims file in conjunction with the applicable laws and regulations and affording all reasonable doubt to the Veteran, the Board finds her lumbar spine disability is the result of her active duty service. Here, the JMR determined the July 2014 VA examination of record to be inadequate. Additionally, the December 2019 private medical opinion finding the Veteran’s lumbar spine disability was the result of her active duty service further supports the Veteran’s October 2019 Board hearing testimony of continued pain since service. As such, considering the private medical opinion in conjunction with the Veteran’s October 2019 testimony, the Board finds that to remand for another medical opinion or examination is unnecessary in this case as the evidence is in relative equipoise. Accordingly, the Board finds that after granting all reasonable doubt to the Veteran that it is at least as likely as not that her lumbar spine disability was the result of an in-service injury, event, or disease. Hence, the benefit of the doubt rule applies. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Therefore, the Veteran’s claim of service connection for a lumbar spine disability, is granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.