Citation Nr: 21026793 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-31 920 DATE: May 4, 2021 ORDER Entitlement to service connection for a lumbar spondylosis disability, to include degenerative changes of the lumbar spine is granted. FINDING OF FACT The preponderance of the evidence is for a finding that the low back disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back 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 November 1990 to June 1991 with additional reserve service, including a period on inactive duty for training (INACUDTRA) from October 17, 1992 to October 18, 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) regional office. The Veteran testified at a hearing with the undersigned in January 2018. The matter was most recently remanded in January 2020 and has returned to the Board for further adjudication. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran has a current low back disability. See February 2020 VA Examination. Thus, the remaining question is whether the current low back disability is related to service. Medical records show the Veteran was injured in a motor vehicle accident in October 1992, when he was returning from ACDUTRA. He was treated for compound tibial fracture, right hip dislocation and facial fracture. Service treatment records (STRs) show a lumbar strain in May 1996 when the Veteran noted back pain while performing a physical fitness test. The Veteran stated he had experienced low back pain since a car accident in October 1992. The diagnostic impression was left lumbar strain. A June 2000 x-ray showed Grade I spondylosis diagnosis, in the L-5 vertebrae. The Veteran presented for a VA examination in September 2018. After considering the in-service accident and treatment and subsequent treatment records, the examiner offered a negative nexus opinion. As rationale, the examiner explained that there was no evidence of a back disability at the time of the in-service accident and evidence of back pain in service was not until four years after the accident. The examiner concluded that the back pain in service as resolvable and acute. The Board found that opinion inadequate insofar as the examiner did not consider the Veteran's competent lay testimony of continuity of symptomatology. In a February 2020 opinion obtained after the Board remand, a VA examiner offered a negative nexus opinion. The examiner reviewed the record, including the 2018 VA examination and concluded that the prior opinion "is correct and valid on review, increased rating remains adequate to show [the Veteran's] back problems do not stem from" the 1992 accident. The examiner referenced a 1994 service examination that did not include complaints of back pain and a 1996 complaint of current back pain following exercise. The examiner went on to review private medical opinions submitted in support of the Veteran's claim and concluded those opinions were essentially not adequate. The Board affords that opinion little probative value because it does not consider the Veteran's report of continuous symptoms since the 1992 accident. The examiner's reference to the 1996 complaint is incomplete because that same record included the Veteran's report of back pain since 1992. Evidence in support of the claim includes opinions from two private providers. In a June 2013 private medical opinion, Dr. R.J.H. opined that the Veteran's low back disability is at least as likely as not related to the motor vehicle accident that occurred in October 1992. In support of his opinion, Dr. R.J.H. noted that x-rays showed significant spondylolisthesis of the L-5 vertebral body. The physician noted an injury of this type would be consistent with a high impact injury. In offering an opinion as to why the injury may have not been noted in hospital records, Dr. R.J.H. noted the Veteran had more serious injuries at the time of the motor vehicle accident and the minor back strain may have been overlooked. A February 2018 opinion, Dr. B.K.D. concluded that the Veteran's current back diagnosis "relate[s] in part" to the 1992 accident. The Board finds the evidence is at least in equipoise as to whether the Veteran's currently diagnosed back disability is related to the motor vehicle accident that occurred while the Veteran was on INACTDUTRA. Treatment records related to the accident do not detail back complaints, but do include pertinent diagnoses of compound tibial fracture and right hip dislocation. Subsequent service treatment records include records that are silent for back pain and records that include the Veteran's report in 1996 of back pain since the 1992 accident. Post-service treatment records reveal treatment for a low back disability. The Veteran testified that he had continuous symptomatology since the accident. The Board finds the Veteran's inservice report of history of back pain since the 1992 accident is credible as it was given in connection with treatment, where it is presumed the Veteran would offer an accurate history. The Board finds the Veteran competent and credible as to having continuous back pain since service. The negative VA opinions are afforded little probative value as neither opinion adequately considered that hx. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for lumbar spondylosis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jarman, 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.