Citation Nr: 21028720 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-08 713 DATE: May 11, 2021 ORDER Service connection for a lumbar spine disability is granted. Service connection for an acquired psychiatric disorder is granted. FINDINGS OF FACT 1. The evidence is at least in relative equipoise as to whether the Veteran's lumbar spine disability is related to service. 2. The Veteran's adjustment disorder with chronic depression is related to his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1976 to June 1978 in the U.S. Marine Corps. This matter comes before the Board of Veterans' Appeals (Board) from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified before the undersigned Veterans Law Judge in May 2019. A copy of the transcript is of record. In October 2019, the Board denied service connection for the Veteran's lumbar spine disability and acquired psychiatric disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court issued an Order granting a Joint Motion of Remand (JMR), which vacated the October 2019 Board decision and returned the case to the Board for further appellate review. In December 2020, the Board remanded the issues on appeal for further development. This case has now returned to the Board for appellate consideration. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 C.F.R. § 3.309. Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Lumbar Spine The Veteran contends that his lumbar spine disability is related to military service. The Veteran has a current diagnosis of lumbosacral strain, lumbar spine degenerative spondylolisthesis, and disc herniation. Additionally, during the May 2019 Board hearing, the Veteran testified that he suffered a fall during basic training resulting in back pain; however, he did not seek treatment for his back pain at that time and took over the counter medication to relieve symptoms. The Veteran's service treatment records show that he suffered an injury at an obstacle course in July 1976 and received treatment for abrasions to his right lower leg. The Veteran is competent to report observable symptoms, treatment, and injuries during service. Additionally, the Board finds that the Veteran's statements are credible. As such, the first two elements of service connection are established. Regarding the third element, the evidence consists of an October 2014 medical opinion from a VA physician, a January 2021 VA opinion, and the Veteran's lay statements. In October 2014, the Veteran's VA physician opined that the Veteran's back condition is at least as likely as not related to his in-service injury. The VA physician explained that the Veteran has had back pain since service. The January 2021 VA examiner opined that the Veteran's back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale stated that the Veteran's lay statements regarding onset and continuity of symptomatology, including his October 2019 testimony, were considered and medical records were reviewed, however they are silent regarding back complaints, treatments, and follow up care during service and one year after service. The Board notes that it is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. Accordingly, the Board affords the January 2021 VA opinion little probative value. Based on the foregoing, the Board finds the evidence to be at least in relative equipoise as to whether the Veteran's lumbar spine disability is related to service. If the evidence is supportive or is in relative equipoise, then the veteran prevails. See 38 C.F.R. § 3.102. Accordingly, service connection for a lumbar spine disability is granted. Acquired Psychiatric Disorder The Veteran contends that his diagnosed adjustment disorder with chronic depression is related to his lumbar spine disability. The Veteran was afforded a VA examination in January 2021. The VA examiner opined that it is at least as likely as not that the Veteran's adjustment disorder with depressed mood is proximately due to his lumbar spine condition. The Board finds the January 2021 opinion to be adequate and highly probative as the examiner considered and addressed the Veteran's contentions, conducted a thorough examination of the Veteran, and provided clear conclusions with supporting data and reasoned explanations. As the Board has found that the Veteran is entitled to service connection for a lumbar spine disability, the Board also finds that service connection is warranted on a secondary basis for an acquired psychiatric disorder. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Kernen, 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.