Citation Nr: 21027236 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-25 990 DATE: May 5, 2021 ORDER Service connection for a lumbar spine disability is granted. FINDING OF FACT Affording the Veteran the benefit of the doubt, his lumbar spine disability is etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine 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 had active service from July 1978 to January 1979. During the current appeal and specifically in July 2019, the Board of Veterans' Appeals (Board) remanded this case for further evidentiary development. The agency of original jurisdiction (AOJ) has since returned the case to the Board. Service Connection for a Lumbar Spine Disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Further, a layperson is competent to report on the onset and continuity of his or her current symptomatology. 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). The Veteran underwent VA thoracolumbar spine examinations in January 2016 and in March 2020. The January 2016 examination report noted the Veteran was diagnosed with degenerative arthritis of the spine, but this diagnosis is not consistent with the medical records and is also contradicted by the examiner stating elsewhere in the report that the Veteran did not have arthritis. The March 2020 VA examination shows that the Veteran has a current diagnosis of degenerative disc disease, which is consistent with his medical records. As such, the current disability prong of this claim for service connection has been met. Further, the Veteran submitted multiple written lay statements, in February 2016, June 2016, and November 2016, wherein he stated that his back pain has persisted since an injury he sustained to his lower back in service. The in-service injury is confirmed by his service treatment records, which show that he was diagnosed with a lumbar strain at that time. However, no imaging of his lumbar spine was done when the in-service diagnosis was rendered. Further, the Veteran re-injured his back in post-service employment years after separating from service, but he has consistently asserted that his back pain initially started during active service and has continued since that time. Also, in a November 2016 private medical opinion, Dr. J.A. provided a detailed summary of the Veteran's lumbar spine medical history and opined that his current lumbar spine disability was related to many incidents, the earliest of which was his in-service lower back injury. The Board recognizes that the January 2016 VA examiner, who also provided a subsequent November 2018 addendum opinion, opined against service connection for the Veteran's lumbar spine disability and related his condition to injuries suffered post-service. The March 2020 VA examiner opined against a medical nexus between the Veteran's back disability and service, but admitted that he could not really determine precisely when the Veteran's degenerative disc disease began. While the Board cannot ignore or disregard the VA examiners' medical conclusions [Willis v. Derwinski, 1 Vet. App. 66 (1991)], the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, the 2016/2018 VA examiner did not render a nexus opinion on the condition with which the Veteran was actually diagnosed, as previously discussed. Further, the examiner failed to take into account the Veteran's lay statements regarding the history and onset of his lower back pain. In addition, the 2020 VA examiner's negative nexus opinion was actually based upon his inability to determine when the condition onset. Neither examiner addressed the fact that imaging of the Veteran's lumbar spine was not performed in service when discussing the post-service employment injury medical records, which contain the first imaging evidence of degenerative disc disease. Thus, neither VA examiner discussed the possibility of the condition being present after the in-service injury, but only diagnosed when imaging was performed years later. Due to these deficiencies in the opinions, the Board concludes that such conclusions are not highly probative, and affords them negligible, if any, evidentiary weight on the issue of entitlement to service connection for the Veteran's lumbar spine degenerative disc disease. In this case, the Veteran has competently asserted experiencing symptoms of his current lumbar disability since active service, and this lay evidence is not contradicted by any competent, probative medical opinion of record. He also has provided a private opinion linking his low back disability to his in-service injury. Of note, another private opinion from Dr. F.F., MD, dated March 2016, was also submitted in favor of service connection, but Dr. F.F. failed to explain his reasoning for this determination. Although Dr. F.F.'s opinion is also of little probative value, the evidence supporting service connection is at least in equipoise. Affording the Veteran the benefit of the doubt, service connection is warranted for his lumbar spine disability. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.