Citation Nr: 21024485 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-56 266A DATE: April 22, 2021 ORDER Service connection for a back disability is granted. FINDING OF FACT The Veteran’s back disability had its onset in service. CONCLUSION OF LAW The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1963 to December 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2019. This matter was previously remanded by the Board in a February 2020 decision for additional development. Service Connection Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service connection for a back disability The Veteran seeks service connection for his back disability. The Veteran contends that while in service working as a fuel specialist on the flight line, he injured his back lifting heavy equipment and excessive bending, which resulted in chronic back pain which has been recurrent since service. The Veteran’s Report of Medical Examination from December 1963 is also free of any disabilities relating to his back condition. The Veteran reiterated in his May 2017 Notice of Disagreement that he suffered from his back injury while in service initially, and since has doctors at least once a year for the problem and consistently taken medication as well; he has not been free of his back pain since he was in the Air Force. See Notice of Disagreement. The Veteran further states in his November 2017 Form 9 that he has experienced loss of feeling in his legs and it continues to worsen resulting from his continuous severe back problems that originated in service. The Veteran was provided a VA medical opinion for his back in March 2017; the examiner conceded that the Veteran did complain and seek treatment for high lumbar back pain in May 1966 while in service but supported a negative nexus opinion due to the back pain complaints resulting in a UTI diagnosis and the Veteran’s exit examination showing no back disability. The Veteran supplemented his claim with lay statements, service records, VA and private treatment records. Service treatment records show a May 1966 complaint regarding back pain in the high lumbar-thoracic areas. See STR-Medical. Private medical records submitted document diagnoses of lower back pain, discogenic, and L3-S1 severe degenerative disc disease in December 2014, as well as a history of lumbar fusion and chronic pain syndrome in June 2016. See Private Medical Treatment Records. The Veteran stated in his October 2019 Board Hearing that he did not have a pre-existing back injury before he joined the Air Force; while in service, he pulled large and heavy hoses while refueling jets and planes. He complained about his back while in service, and doctors at each base he was station told him to have a piece of plywood put up underneath his mattresses to alleviate the pain. The Veteran reported his back issues had their onset while working on the flight line, and after he separated from service, he continued to seek back treatment and medication to help alleviate the pain, while he had a fusion completed and underwent multiple surgeries for his back disability. See October 2019 Hearing Transcript. The Veteran’s spouse of 15 years, who was present at the hearing, also stated the Veteran has been getting pain medication for his back disability from time to time throughout the years. Id. The Board acknowledged the March 2017 VA examiner’s opinion that the Veteran’s diagnosed back disability is not related to service, but held that the medical opinion was solely based on the single back pain complaint in May 1966 and the exit examination; the opinion did not consider the Veteran’s contentions and lay reports of back symptomatology present in the claims file. The Board remanded the issue for a new VA examination to obtain a responsive etiological opinion. See February 2020 BVA Decision. After the Board’s remand in February 2020, the Veteran submitted a buddy statement and his own lay statements in support of his service connection claim. The Veteran’s sister provided a statement in which she stated Veteran was not able to play with her following his return from active duty service because of his back pain. See July 2020 Buddy Statement. The Veteran further asserted that he did not mention his back problem at his exit examination in 1967 because he was young and just wanted to go home. He also stated he did not have supporting medical records after his discharge due to the lapse of time and that many family members, fellow servicemen and his family doctor who could attest to his back problems have since died. See August 2020 Correspondence. The Veteran was provided a VA back examination in October 2020. His spinal fusion with moderate canal and foraminal narrowing was diagnosed. Veteran stated his back pain has worsened over the last 18 months. In 2007, he also fell off a ladder when his back gave out, resulting in his having to sit upright for two weeks before he was able to lay down due to the pain. Veteran was given steroid injection twice in 2007 and a laminectomy L3 to S1 in February 2008. He was also provided a Medtronic neurostimulator implant in September 2008 and February 2009. He reported his pain is consistently a 4 out 10, which is enhances to 10 out of 10 with walking. He described the pain as a constant, dull ache, while nerve damage in hands and feet caused them to feel numb with very little feeling. Veteran requires constant use of a wheelchair. The VA examiner initially opined that the Veteran’s spinal fusion and moderate canal and foraminal narrowing is related to his in-service injury as there is evidence of chronicity and a nexus has been established. However, in an addendum opinion in January 2021, the examiner changed the medical opinion to a negative opinion, concluding that there seems to be no medical evidence to substantiate the reported history regarding the back condition during service and his separation exam is silent of any back condition. The examiner held that Veteran’s back condition seems to have started when the Veteran fell off a ladder in 2007 and the degenerative arthritis of the spine is more likely due to age-related wear and tear. See January 2021 C&P Exam. The Board acknowledges the noted complaint of back pain in the May 1966 STR, as well as the March 2017 and October 2020 VA examiner’s negative nexus opinions. As a finder of fact, the Board finds the Veteran’s report of having back problems since service both competent and credible. Further, he has been diagnosed as having spinal fusion and moderate canal and foraminal narrowing and there is conflicting medical evidence as to its relationship to service. In light of the foregoing, and resolving doubt in the Veteran’s favor, the Board finds service connection is warranted for the Veteran’s back disability. See 38 C.F.R. § 3.303(a). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.