Citation Nr: 21027672 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 12-19 565 DATE: May 6, 2021 ORDER Entitlement to service connection for a low back disability is granted. FINDING OF FACT The evidence is in equipoise as to whether the low back disability is related to service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1966 to October 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of a Department of Veterans Affairs (VA) regional office (RO). In August 2015, the Veteran testified at a Travel Board hearing held before the undersigned Veterans Law Judge and a transcript of that hearing has been associated with the electronic claims file. In October 2020, the Board informed the Veteran that he should consider a virtual hearing in lieu of his request for a Travel Board hearing. The Veteran had a Travel Board hearing in August 2015, and no further development with regard to a hearing is necessary. In October 2015, March 2016, June 2017, November 2018, August 2019, and October 2020, the Board remanded the claim for further development. 1. Entitlement to service connection for a low back disability Governing law and regulations 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). To establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Analysis A November 2015 VA examination report reflects diagnoses of degenerative joint disease of the lumbosacral spine and segmental instability. A March 2021 VA examination report reveals a diagnosis of degenerative joint disease of the lumbar spine with stenosis. Thus, Hickson element (1), current disability, is shown. As for in-service injury or disease, the Veteran reported that he injured his low back when his vehicle ran over a land mine while in Vietnam. He testified that he briefly saw a medic in the field and that he did not go to the infirmary because of his first sergeant's expectations about who should go to the infirmary. Hearing transcript, page 4. His service treatment records do not show any treatment for a low back injury. In an October 1968 report of medical history that was completed as part of a separation examination, the Veteran denied back trouble of any kind. The Veteran served in Vietnam as an engineer equipment repairman. In a June 2019 statement, a private doctor noted that he treated the Veteran starting in 1969 for an in-service back injury. He is competent to report his injury, and the Board finds him credible, especially since his reporting is corroborated by a private doctor who treated him immediately after service. Hickson element (2), in-service disease or injury, is established. As to medical nexus, there is conflicting medical evidence. Private treatment records show that April 2003 X-rays of the lumbar spine revealed lumbar spine degenerative disc disease. An August 2008 VA examination report reflects that the Veteran reported being diagnosed with peripheral neuropathy and that the condition had existed since 1975. The examiner diagnosed peripheral neuropathy of the lower extremities. In an addendum, the examiner clarified that the diagnosis is diabetic neuropathy. Private treatment records show that in March 2009 the current problems were listed as lumbar radiculopathy, lumbar degenerative disc disease, and lumbar stenosis. In the present illness information section, it is noted that the Veteran had right-sided low back pain that radiating into the right leg and that this symptom had been chronic since running over a landmine in Vietnam. In a November 2015 medical opinion, the November 2015 VA examiner opined that it is less likely than not that the low back disability was incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the service treatment records do not show that the Veteran had a back problem in service. The examiner further stated that on October 3, 1968, the Veteran had a separation medical examination and marked "no" to all musculoskeletal questions in the report of medical history. The examiner added that there is no evidence that the Veteran received any medical treatment for a low back disability until 2009 after leaving service. The examiner indicated that the degenerative joint disease is consistent with a disability related to the Veteran's age and that X-rays do not show evidence of trauma inflicting the spine. As for the November 2015 VA medica opinion, the Board reiterates that it finds the Veteran credible in reporting an in-service low back injury even though the service treatment records do not show treatment for that injury. As noted below, the Veteran has submitted medical evidence of treatment well prior to 2009. In a May 2016 addendum to the November 2015 VA medical opinion, the examiner stated it is less likely than not that the back condition is related to service and that the specifics are given in his November 2015 medical opinion. As for the Veteran's reporting of an in-service back injury and continuity of symptomatology, the examiner noted that most individuals experience back pain from time to time and that the Veteran currently works as a cattle farmer. The examiner indicated that the Veteran reported that his back condition interferes with walking on rough terrain and on grass and that therefore it is expected that there will be back problems from time to time. As for the medical evidence showing a diagnosis of low back disability in 2003, the examiner noted the early diagnosis in 2003 was 48 years after he left service. The examiner added that VA treatment records reveal that back pain was not specifically identified in the treatment records until 2007. In a September 2016 addendum to the November 2015 VA medical opinion, the examiner stated he would expect that the Veteran would have back symptoms anyway even if he had not served because he is a cattle farmer. The examiner added that since 2004 the Veteran was seen at least 17 times at VA and that during the initial six VA evaluations, he did not complain of back pain. Regarding these two addendums, as noted below the Veteran has submitted medical evidence of treatment well prior to 2003. A May 2019 VA examination report reveals that the examiner indicated that the date of diagnosis for degenerative arthritis of the spine was June 1968. In the medical history section, it is noted that the low back condition began in 1968 after a mine blast while in service. In a May 2019 medical opinion, the May 2019 VA examiner opined that it is less likely than not that the Veteran's degenerative arthritis of the lumbar spine is service connected because there are no medical records showing a progressive and chronic back complaint and treatment for chronic back condition while in service and after active duty. The examiner added that there were no signs or symptoms of progressive or longitudinal degeneration or continuity of care to support the Veteran's claim that his back pain started after his back was injured from a mine blast in Vietnam. The examiner further noted that there were no records indicating injury in the line of duty during active service. As for the November 2015 VA medica opinion, the Board reiterates that it finds the Veteran credible in reporting an in-service low back injury even though the service treatment records do not show treatment for that injury. As noted below, the Veteran has submitted medical evidence of treatment immediately after active service. In a June 2019 statement, a private doctor stated that the Veteran was a patient of his from approximately 1969 to the mid-1970s. The physician stated that the Veteran's records were no longer available. The doctor confirmed that he treated the Veteran for complaints of low back pain that was the result of his in-service injury. In a December 2019 addendum to the May 2019 medical opinion, the May 2019 VA examiner opined that it is at least as likely as not that the date of diagnosis of June 1968 for degenerative arthritis of the spine outlined in the May 2019 VA examination report are the self-reports of the Veteran and not the examiner. The examiner noted that records showed that degenerative arthritis of the spine was first diagnosed in 2003 by a magnetic resonating imaging (MRI) scan and not in May 1968. The examiner also opined that it is less likely than not that the degenerative joint disease of the lumbar spine is service connected. The examiner stated that there are no records showing or supporting the Veteran's claim that he was treated by a private physician from the 1960s to 1995. The examiner added that despite the statement from the private doctor indicating he treated the Veteran from 1969 to mid-1970, there was no sign of continuation of symptomatology from the 1970s until the MRI scan in 2003. The Board notes that the ambiguity in the May 2019 VA examiner's responses in the December 2019 addendum. Moreover, the Veteran is competent to report continuity of symptomatology from the 1970s to 2003. The Board finds him credible because he was treated for low back pain from 1969 to mid-1970s. In a March 2021 medical opinion, the March 2021 VA examiner stated that the June 1968 diagnosis of degenerative arthritis of the spine and that the condition began in 1969 after a landmine blast in service provided in the May 2019 VA examination report were notations by the May 2019 VA examiner of the Veteran's subjective report. The March 2021 VA examiner noted that there was no record from 1968 showing an injury or a landmine blast or any record showing degenerative arthritis of the spine. The March 2021 VA examiner opined that it is less likely than not the degenerative joint disease of the lumbar spine with stenosis had its onset in service, was incurred in service, or was caused by an in-service injury, event, or illness. The March 2021 VA examiner noted that there were no medical records showing a diagnosis or treatment for a lower back condition in service and that there were no reports to indicate that the lower back was affected by service duty. The Board notes that the March 2021 VA examiner did not address the Veteran's continuity of symptomatology and that the Board finds the Veteran credible in his reporting of the in-service injury. Given the evidence that the Veteran was treated for low back pain related to service from 1969 to mid-1970s, the ambiguity of the May 2019 VA examiner's statements on whether the low back disability began in active service, and the June 2009 private treatment record suggesting that the Veteran had had symptoms of his current disability since his injury in active service, the Board finds that there is an approximate balance of positive and negative evidence that does not satisfactorily prove or disapprove the claim. Therefore, the evidence is in equipoise as to whether the low back disability is related to service and Hickson element (3) is met. In summary, the Board is of the opinion that the Veteran has met all requirements needed to establish service connection for a low back disability. The benefit sought on appeal is accordingly allowed. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.