Citation Nr: 21027066 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-21 049 DATE: May 4, 2021 ORDER Service connection for a low back disability is granted. REMANDED Entitlement to service connection for a sinus disability is remanded. FINDING OF FACT The Veteran has experienced continuity of symptomatology related to the low back disability since his separation from service. CONCLUSION OF LAW The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, had service from August 1983 to June 1986. In January 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Board previously considered this appeal in April 2020, and remanded these issues for additional development. After the development was completed, the case returned to the Board for further appellate review. The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997. In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board has an inherent fact-finding ability. Id. at 1076. The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). 1. Service connection for a low back disability. The Veteran contends that his low back disability is related to service. 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). The Veteran has a current diagnosis of lumbosacral spine degenerative joint disease status post lumbar fusion as evidenced by the August 2019 VA examination. Degenerative joint disease (arthritis) is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. May 2006, March 2007, and May 2009 VA treatment records show the Veteran endorsed continuous symptoms of low back pain since 1985 when he injured it while lifting supplies. The May 2006 VA treatment record shows he also stated his lumbar surgery in 2004 helped alleviate symptoms for a "brief period," but then continued with daily low back pain. The Veteran endorsed continued low back pain since service over the next eight years when he ultimately filed this claim for service connection. While no treatment records exist from during the applicable presumptive period, the Board finds that the Veteran continued to experience the same symptoms from June 1986 to the present. He testified before the undersigned in January 2019 that his job as a supply clerk involved everyday lifting of heavy items, loading and unloading supply vehicles, and frequent "pack run" exercises while wearing full military gear. The Veteran is competent to report that he experienced symptoms of low back pain during service, but did not seek treatment because he was told to "suck it up," and that "it was really discouraged in your unit" to report to sick call. His statements and testimony are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows that these symptoms were attributable to the Veteran's low back disability. Cf. Pond v. West, 12 Vet. App. 341 (1999) (statements made for VA disability compensation purposes are of lesser probative value than previous more contemporaneous in-service histories). The August 2019 and November 2020 VA examination opinions are not probative as they are solely based on the absence of documentation in the record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Based on the foregoing, and resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for a low back disability is warranted and the claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS AND BASES FOR REMAND 1. Entitlement to service connection for a nose disability, to include a sinus disability. The Veteran asserts that his nose disability is related to service. The November 2020 VA examiner opined that while the Veteran was treated for a sinus condition during service, there is no evidence of chronicity shown in the record to favorably opine that it is a continuation of a condition first incurred while in service. The examiner based this opinion on the lack of medical documentation. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Additionally, this opinion did not discuss the lay report of exposure to dust and gas during service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). As such another opinion is necessary. Accordingly, the case is REMANDED for the following action: Forward the claims file to an appropriate examiner. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sinus disability is at least as likely as not related to service. The examiner should specifically discuss the Veteran's report of exposure to dust and gas during service and the report of congestion, nose bleeds and pain during and after service. A complete rationale for all opinions is required. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Connally, 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.