Citation Nr: 21027760 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-35 593 DATE: May 6, 2021 ORDER Entitlement to service connection for a back disability is granted. FINDING OF FACT Resolving all reasonable doubt in his favor, the Board finds that the Veteran's back disability had its onset during service. CONCLUSION OF LAW The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1969 to March 1972. This matter was previously before the Board in April 2020, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in an October 2020 supplemental statement of the case. The Board finds that VA has substantially complied with the April 2020 Board remand. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including arthritis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38C.F.R. §3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38C.F.R. §3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for a back disability The Veteran contends that his current back disability is etiologically related to his active duty service. More specifically, the Veteran contends that his current disability had its onset during an in-service back injury. At the outset, the Board notes that the Veteran has been diagnosed with a back condition, to include lumbosacral strain, lumbago, and degenerative changes. See September 2020 VA examination; see August 2019 letter from treating provider; see also treatments notes generally. A review of the Veteran's service treatment records shows repeated complaints and treatment for low back pain. The Veteran fell from a truck in approximately September 1970 when he was diagnosed with a muscle strain. Subsequent treatment records show ongoing complaints of low back pain radiating down his leg in April and May of 1971. Nevertheless, his February 1972 separation report of medical examination list his spine and all other systems as normal. The Board notes that an earlier April 2012 VA examination of his back was previously found to be inadequate, while a January 2020 VA examination declined to provide an etiology opinion triggering the April 2020 Board remand. The Veteran submitted a statement from a private treating chiropractic healthcare provider. The provider opined that it was their professional medical opinion that the Veteran's condition of lumbago with radiculitis was a direct result of his fall from a vehicle during service. See August 5, 2019 letter from private provider. Pursuant to the April 2020 Board remand directions, the Veteran was afforded another VA examination in September 2020. The examiner opined that it was less likely than not that the Veteran's back condition was incurred in or caused by an in-service injury event or illness. The examiner characterized the Veteran's in-service condition as acute, but nevertheless noted that the Veteran received treatment in both 1970 and 1971. The examiner's reasoning also relied on a lack of medical records to review between the Veteran's separation and his first post-service complaints in approximately 2012. Although the examiner did not specifically opine that the Veteran's condition was due to aging, they did note that it is well known in medical literature that arthritis of the spine is present in most individuals at around age 50. The VA opinion relied on the lack of post-service treatment records to support the negative opinions but did not explicitly consider the Veteran's lay statements regarding continuity of symptomatology since service. A medical opinion based solely on the absence of documentation in the service treatment records or that fails to take into account lay statements is inadequate. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner's opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010). More importantly, the nurse practitioner examiner did not explicitly address the private provider opinion submitted by the Veteran, focusing instead on the treating provider's chiropractic specialty. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current back disability began in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a back disability is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.