Citation Nr: 21024102 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-05 599A DATE: April 22, 2021 ORDER Service connection for thoracolumbar strain with focal degenerative disc disease L5-S1 (hereinafter low back disability) is granted. FINDING OF FACT The evidence of record supports finding that Veteran’s low back disability is related to in-service injury. CONCLUSION OF LAW The criteria for service connection for low back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1980 to June 1984. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a January 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a September 2019 Travel Board hearing, and a transcript of this hearing is of record. In February 2020, the Board denied service connection for low back disability. The Veteran appealed that decision. In a November 2020 Order, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR) and vacated the Board’s February 20202018 decision as to entitlement to service connection for low back disability. The case was returned to the Board for compliance with the terms of the JMPR. Entitlement to service connection for a low back disability. The Veteran contends that his current low back disability is due to a motor vehicle accident in service. Specifically, he reported ongoing low back pain since the in-service accident, which has worsened over the years. See Hearing Transcript (September 2019). He reported that he “powered through,” because he was not able to get treatment after he separated from active duty. Id. Compensation may be awarded for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Where 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); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, where the preponderance of the evidence is against the claim, the claim for benefits must be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board concludes that the evidence supports a grant of service connection for the Veteran’s diagnosed thoracolumbar strain with focal degenerative disc disease L5-S1. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. First, the evidence of record reflects a current low back disability. In December 2007, the Veteran was diagnosed with degenerative disc disease. The March 2008 VA examiner diagnosed the Veteran with thoracolumbar strain with focal degenerative disc disease L5-S1. In April 2009 and again in January 2016, the VA examiners diagnosed the Veteran with lumbar degenerative disc disease. More recently, a June 2020 x-ray shows moderate diffuse degenerative changes of the lumbar spine with a mild levolumbar scoliosis; disc space narrowing L2-3 level; disc space narrowing and spondylolisthesis L4-5 level; and disc space narrowing L5-S1 level. See C&P Exam (July 2020). Second, there is competent, credible evidence of in-service injury to the low back. Specifically, the Veteran’s service treatment records (STRs) show several instances of treatment for low back pain. A June 1983 STR reflects that the Veteran complained of back pain of three days duration. He denied any history of back pain or injury, but did report he was carrying laundry bags and twisted his back. Id. He was diagnosed with a muscle spasm. Also, a July 1983 STR shows that the Veteran was in a motor vehicle accident, following which, he complained of thoracic and lumbar pain. He was diagnosed with lumbosacral strain. X-rays taken following the accident were normal. STRs show that he again complained of intermittent pain in August 1983 and was diagnosed with probable lumbosacral strain. October 1983 STRs reflect continued complaint of intermittent low back pain since his accident in July 1983, with his current episode beginning following a physical training test. He was diagnosed with acute musculoskeletal strain. Additionally, STRs show complaints of low back pain were noted in November 1983 and April 1984. As to the third element of service connection, the Board observes that there is both favorable and negative competent, credible, and probative medical evidence. The competent, credible evidence of record that links the Veteran’s current low back disability to the in-service injury includes a June 2020 VA examination accompanied by a June 2020 VA medical opinion as well as a July 2020 VA medical opinion, which reflect that the Veteran’s low back disability is at least as likely as not caused by the documented in-service injury in view of the Veteran’s medical history. The opinions noted (1) the July 1983 STR reflecting that the Veteran suffered a low back injury due to a motor vehicle accident while on active duty, (2) STRs showing the Veteran’s complaint of mild paraspinal muscle tenderness following that motor vehicle accident, (3) an October 1983 diagnosis of sprain, lumbar paraspinal muscle, and (4) an April 1984 reports of low back pain for 10 months. See C&P Exam (July 2020). The opinions also documented the Veteran’s reports of the in-service injury and reports of low back pain since service. Moreover, the opinions reflect full consideration of the Veteran’s military history. While the VA examiners did not acknowledge a post-service March 2000 treatment note from Kaiser Permanente reflecting complaints of low back pain after lifting a table and a resulting diagnosis of acute low back strain, the opinions sufficiently address the Veteran’s medical history and note review of the Veteran’s complete medical record, and favorably find that the Veteran’s low back condition is a manifestation of the unresolved injury in service. On the other hand, April 2009 and January 2016 VA examinations reflect that the Veteran’s low back disability was less likely than not related to the Veteran’s in-service complaints of low back pain, noting the absence of chronicity or continuity for the Veteran’s back complaints. The January 2016 VA medical opinion is in part based on the examiner’s finding that the Veteran’s subjective account of his medical history is not supported by objective medical evidence, which the examiner found to show intermittent back pain in service consistent with acute and transitory sprains/strains and not a chronic condition. However, the Board observes that the Veteran’s STRs show an onset of low back pain in service, including after the July 1983 motor vehicle accident, and ongoing complaints of low back pain since the July 1983 in-service injury. Additionally, later medical evidence reflects complaints of, treatment for and diagnosis of a low back disability consistent with the reported in-service symptoms, including in July 1983, August 1983, October 1983, November 1983 and April 1984. See STR (February 2008) (reflecting that the Veteran is being treated for a lumbosacral strain). An April 1984 STR reflects low back pain for the preceding 10 months after the motor vehicle accident. Id. Furthermore, the Veteran’s statements establish the presence of observable symptomatology and, thus, the Board finds the Veteran’s lay statements to be competent. See Barr v. Nicholson, 21 Vet. App. 303 (2007). To that extent, the Veteran offered a statement that he has experienced low back since the 1983 in-service motor vehicle accident and did not report his low back problems during his time in the Army Reserve and during subsequent employment, because he needed to work. See Correspondence (August 2016). The Veteran’s statements are also consistent with the other medical and lay evidence of record and, thus, the Board finds the Veteran’s lay statements to be credible. See Caluza, 7 Vet. App. at 511. Additionally, the Veteran and his spouse have both offered opinions that the Veteran’s current low back disability is related to his in-service motor vehicle accident. The Board notes that the Veteran served as medical specialist in the Army. Specifically, in his May 2016 statement and again in his March 2021 statement, the Veteran indicated that he performed research though the American Medical Association and the New England Journal of Medicine and other medical literature related to DDD and injuries, such as car accidents, and stated that based on his research, when damage to a disc is done, it cannot repair itself the way other tissues in the body can and that the significant jolt to his spine during his in-service motor vehicle accident began the degenerative changes to his back. See Correspondence (August 2016). The Veteran’s wife, who is an Emergency Room technician, also reported observing the Veteran’s low back pain worsening over the preceding 17 years, which she attributed to the in-service back injury. See Hearing Transcript (September 2019). On balance, the weight of the evidence supports finding that the Veteran incurred a low back injury during active service and continued to experience symptomology associated with his low back injury thereafter; and that his thoracolumbar strain with focal degenerative disc disease L5-S1 is at least a likely at not related to in-service injury. Accordingly, the claim is granted. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.