Citation Nr: 21027286 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 19-15 767 DATE: May 5, 2021 ORDER Service connection for a low back disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his low back disability is at least as likely as not related to his in-service motor vehicle accident and rigors associated with his military occupational specialty as an equipment operator. 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 in the United States Navy from December 1960 until his honorable retirement in June 1980. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board on appeal from an August 2015 decision by the St. Petersburg, Florida, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied the Veteran's petition to reopen his 1998 claim for service connection for a low back disability because new and material evidence had not been submitted. The Veteran timely appealed and did not request to testify before the Board. In a November 2020 decision, the Board granted the Veteran's petition to reopen his claim for service connection for a low back disability. The Board also remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain a VA examination and medical opinion addressing the etiology of the Veteran's low back disability, which the RO accomplished. The case now returns to the Board. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When 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). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Analysis First element: A current disability As to the first element of service connection, a current disability, the record is clear that the Veteran does have medically diagnosed low back disabilities, to include degenerative arthritis of the spine, intervertebral disc syndrome, and spinal stenosis. July 2020 VA-contracted Back (Thoracolumbar Spine) Medical Examination. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof As to the second element of service connection, an in-service event, injury, or illness that occurred while on active duty, the Veteran has repeatedly asserted the he incurred a low back disability in service due to his military occupational specialty (MOS) as an equipment operator, his physical training, and a 1977 in-service motor vehicle accident. The Board finds his lay statements are credible. The Veteran had multiple MOSs while in service. Relevant to this claim is his DD-214 for the period from June 1974 to June 1980. During that period of active service, the Veteran served as an equipment operator. He states that he operated numerous pieces of heavy equipment, including bull dozers and front-end loaders, on rough terrain. The machinery was not equipped with soft spring-loaded seats. He constantly bounced really hard and abruptly while using the equipment. This, he believes, contributed to his low back pain. He also believes his low back pain was aggravated by the continuous combat training and obstacle courses he was required to complete. The Board finds the Veteran's statements credible and probative. More significant, the Veteran states he was involved in a Jeep accident in 1977. While driving, the Jeep fell into a four-foot deep trench. At that time, he did not feel any injuries that needed medical attention, so he did not report for treatment. Although no military record exists to corroborate the Veteran's Jeep accident, he did submit lay statements from fellow service members. One service member, W.W., stated he served with the Veteran in 1977. The Veteran drove a Jeep to check on a job site in 1977 and the front end fell into a ditch in one of the construction areas. He said the Veteran seemed okay at the time, so the Veteran did not see a need to seek medical treatment or file an incident report. The Veteran has consistently asserted he was involved in a motor vehicle accident in 1977, and W.W.'s statement confirms the Veteran's assertion. The Board finds the Veteran and W.W. are credible and their statements are probative. The Board finds the evidence is sufficient to establish in-service injury or event. Third element: A causal link As to the third element of service connection, a causal link between the Veteran's current low back disability and in-service events, the Board finds the evidence is in equipoise. Thus, despite the valid medical opinion which is against the claim, after affording the Veteran the benefit of the doubt, it finds that the third element for service connection, a causal link, has been met. Following reopening of the Veteran's claim for service connection, the RO obtained a January 2021 VA-contracted medical opinion addressing the etiology of the Veteran's low back disability. The examiner opined that the Veteran's low back disabilities were less likely than not due to his in-service events, to include the Jeep accident, rigors associated with active duty, and his MOS. The examiner observed that the Veteran was seen for low back pain in August 1981, fourteen months following his separation from service, at which time neither degenerative disc disease nor degenerative joint disease were identified. Although minimal spondylosis was observed, the examiner stated this was age appropriate. Nevertheless, the examiner then said, "There is no further evidence of a back condition until in or around 2013." This statement was incorrect. The Veteran's medical records indicate continuing complaints and back pain since 1981. A March 1982 VA medical note documented a complaint of and treatment for back pain. In May 1986, the Veteran reported numbness in his lower back area, and the medical professional diagnosed him with L2-L3 radiculopathy. A September 1986 VA Naval Hospital clinical record documented that the Veteran was treated for back pain for which he was prescribed medication. In June 1987, the Veteran complained of mild back pain and was diagnosed with sacroiliitis (inflammation of one or both of your sacroiliac joints situated where your lower spine and pelvis connect). In May 1993, the Veteran received a radiologic examination that showed degenerative changes consistent with age. Notably, the Veteran reported experiencing low back pain for the last ten years. In June 1993, he was treated for lumbar spine strain with associated degenerative joint disease. In November 1997, imaging of his lumbar spine showed degenerative changes. The radiologist found "a peculiar smoothly outlined calcific density in the upper abdomen posteriorly." The radiologist opined "this could merely represent a calcified hematoma secondary to previous trauma or surgery. . . The clinical history may clarify this." Without a doubt, the Veteran's medical records are replete with instance where he complained of and was treated for back pain prior to 2013. The January 2020 VA-contracted examiner's opinion relied heavily on the absence of treatment and complaints of back pain between 1981 and 2013 in support of his opinion. Although the examiner also relied on imaging results of the Veteran's back to conclude that there was an absence of traumatic arthritis, but rather that his arthritis was degenerative in nature due to the aging process, the examiner's opinion still relied heavily on the inaccurate factual premise about the Veteran's continuity of symptoms and treatment. Therefore, the Board does not afford the opinion any probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based on an inaccurate factual premise has no probative value."); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion."). Even though a causal relationship has not been demonstrated by a medical opinion, the absence of a valid medical opinion is not an absolute bar to service connection. Davidson, 581 F.3d at 1316. The Veteran has offered his reasons for not reporting any back pain during his active service. He states that he was under immense pressure to accomplish his assigned duties and was not one to complain about minor aches or pains. He states in late 1977, following his Jeep accident, he felt shooting pains in his left buttocks when driving or sitting, but he thought it was just "one of those aches and pains" and saw no reason to seek treatment. See March 2021 Correspondence. In June 1980, the Veteran underwent a military separation examination. The clinician did not document, nor did the Veteran endorse, issues associated with his back. Nevertheless, the Board finds the Veteran's reasons for not reporting minor back pain in service credible. Importantly, the Veteran has routinely and credibly asserted that following his separation from service he sought to obtain a job with Sears Roebuck's (Sears) in 1981. According to the Veteran, Sears required him to undergo a physical examination. He provided a copy of an August 1981 X-ray report that documented hypertrophic spondylosis of his lumbar spine. See May 2017 Correspondence and Medical Records (received by VA June 2017). He states that Sears chose not to hire him base on its doctor's recommendation because he had a lumbar spine abnormality that could be a liability for the company. He explained that he tried to obtain the internal medical report from Sears but was informed those records were destroyed after six years. He submitted a lay statement from a fellow service member, C.P., who confirmed the Veteran was not hired by Sears due to an anomaly seen on an X-ray. The Board finds the Veteran's reports of in-service events that potentially contributed to back pain during active service, and continuing to the present, to be competent and credible evidence of continuing symptoms since active service. What leads the Board to find the Veteran credible is the consistency of his factual assertions since he filed his initial claim for service connection in 1997. Over the course of more than 20 years, the Veteran has not wavered about when his in-service Jeep accident occurred, the context of the accident, the associated symptoms he has had since the accident, and he has not, in the Board's view, exaggerated any of this symptoms. His medical records document a gradual onset and worsening of a back disability beginning around his active service. The 1981 X-ray of his lumbar spine and the Sears doctor's recommendation are credible and probative evidence that the Veteran had a lumbar spine condition near the end of his active service. (Continued on the next page) Based on the above analysis, the competent and credible lay statements from the Veteran coupled with his medical records and lay statements from his fellow service members leads the Board to determine that there is sufficient evidence to causally link the Veteran's low back disabilities with his active service, in particular his 1977 Jeep accident. Significantly, the Board finds no evidence in the record that is contradictory to the Veteran's assertions of an accident in service or any documentation that the Veteran suffered trauma following service such that his low back disability would be attributable to such an intervening injury. As noted by the November 1997 radiologist, the Veteran's lumbar spine showed prior trauma and within a year and a half after service discharge there was x-ray evidence showing hypertrophic spondylosis. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds the third element is satisfied. Accordingly, service connection is warranted for low back disability. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.