Citation Nr: 21028274 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-31 168 DATE: May 10, 2021 ORDER Entitlement to service connection for lumbar spine arthritis and strain (back disability) is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's back disability is related to his active duty service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for back disability are 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 July 1978 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), that denied reopening of a previously denied claim for service connection for lower back injury. In July 2013, the Veteran filed a Notice of Disagreement. In a May 2016 Statement of the Case, the RO reopened the claim and denied it on the merits. The Veteran perfected his appeal in June 2016. In October 2018, the Board found that reopening of the Veteran's March 2012 claim was warranted due to the receipt of new and material evidence and the case was remanded for a new VA examination and medical opinion as to the etiology of the Veteran's low back disability. A Supplemental Statement of the Case was issued in June 2020, continuing the denial of service connection for low back disability. Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Entitlement to service connection for back disability. A July 2019 VA examination report indicates the Veteran was diagnosed with degenerative arthritis of the spine and lumbar strain. Thus, a current disability has been demonstrated. The Veteran's military occupational specialty (MOS) was a Cook, as noted on his DD Form 214. During the July 2019 VA examination, the Veteran reported that he injured his back in service while lifting and carrying a heavy cooking pot. Therefore, the Veteran's reported event is consistent with the places, types and circumstances of the Veteran's service. See 38U.S.C. §1154 (a); 38C.F.R. §3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Thus, the in-service injury requirement is met. The remaining question is whether a nexus exists between the Veteran's current back disability and his in-service back injury. A July 2019 VA examination report indicates the Veteran stated that he sustained a back injury during service when playing football at Camp Pendleton, which was then exacerbated the next day at work when he lifted a large cooking pot. Since leaving service in 1981, the Veteran states that he has continued to experience worsening back pain. A May 2012 Progress Report by the Veteran's private physician indicates that the Veteran reported sustaining a back injury in 1978 during service and has had continuous problems since that time. The Veteran stated that he experiences back pain on a daily basis, describing the pain as severe and constant. In an undated buddy statement, F.D., one of the Veteran's fellow Marines, recalled him injuring his back and having to report to sick bay. Another fellow Marine, E.F., also submitted a statement attesting that the Veteran complained of back problems when picking up supplies in the chow hall and while walking up stairs. He remembers the Veteran going to sick bay on at least two occasions. With regard to nexus, the Veteran and individuals he served with are competent to report the Veteran's back pain symptoms in and since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a Veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service). The Veteran's and the buddy statements in this regard are therefore competent and credible. Evidence against the claim include a July 2019 VA examination report, in which the VA examiner opined that the Veteran's disability was less likely than not incurred in or a result of his time in service. The examiner noted that there were no service treatment records (STRs) for low back pain or low back injury. She stated that degenerative disc disease and arthritis develop over time and that the medical literature did not support nexus. The examiner concluded that the Veteran's low back disability is not etiologically related to armed forces service. She also noted that the Veteran's medical history, including X-rays taken in 1996, reflected a diagnosis of transitional lumbosacral vertebrae (TLV). The examiner found this condition was congenital and existed prior to service. She concluded that the Veteran's TLV had not been aggravated beyond its natural progression by an in-service injury. In an August 2019 VA examination report, the VA examiner found it less likely than not the Veteran's back disability was caused by or due to an in-service injury. She cited the Veteran's entrance examinations, which were within normal limits, and noted there were no STRs indicating he had been treated for a lumbosacral strain while in service. She further noted that the Veteran's post-service medical records were silent for any complaints of back pain through 1995. The opinion also referenced the Veteran's diagnosis of TLV in 1996, finding it was a congenital/developmental defect that existed prior to the Veteran's entrance into service. She then concluded that this pre-existing medical condition had not been aggravated beyond its natural progression by an in-service injury. She found it was more likely that the Veteran's TLV had developed into a chronic disability years after the Veteran's separation from in service, resulting in his current back disability. For the following reasons, entitlement to service connection for back disability is warranted. Initially, the Board notes that TLV need not be discussed because service connection is being granted for lumbar spine arthritis and strain. In addition, the Board finds the July 2019 and August 2019 examination reports to be inadequate and lack probative value, as the examiners' negative nexus opinions appear to have relied primarily on the lack of STRs reflecting treatment or complaints of back pain during service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Further, the examiners did not consider the Veteran's statements and the supporting buddy statements, as to his in-service injury and continuity of symptoms since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination is inadequate where the examiner does not comment on the lay and other evidence of record and instead relies on the absence of evidence in the Veteran's STRs to provide a negative opinion). The Veteran has competently indicated that statements he injured his back during service. There is nothing to explicitly contradict these reports and they are consistent with the evidence of record. Moreover, there is no evidence of record which indicates the veteran lacks credibility. Jandreau, 492 F.3d at 1377 (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan, 451 F.3d at 1337 (lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The two buddy statements are also credible given the consistency among the descriptions of the in-service incident and the resulting injury. Therefore, the negative medical opinions are inadequate and there is competent and credible lay evidence of back pain continuing since service. While the Board could remand for a new opinion, doing so could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304 (c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand for additional development, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case'" (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). Moreover, to the extent that the grant of service connection in this case is based primarily on lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Buchanan, 451 F.3d at 1335. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's degenerative lumbar spine arthritis and strain is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for degenerative lumbar spine arthritis and strain is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.K. Donaldson, 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.