Citation Nr: 21029398 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 07-28 694 DATE: May 13, 2021 ORDER Entitlement to service connection for degenerative arthritis of the spine (lumbar spine disability), is granted. FINDING OF FACT The evidence is at least as evenly balanced as to whether the Veteran's lumbar spine disability onset in service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for lumbar spine 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 in the Army from September 1967 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which determined that new and material evidence had not been received to reopen the claim of service connection for lumbar spine disability. In August 2015, the Board reopened the claim and remanded it for the further development. The Board denied the claim in December 2017. That denial was appealed by the Veteran to the United States Court of Appeals for Veterans Claims (Court). In a May 2019 Memorandum Decision, the Court vacated and remanded the claim for further development and readjudication consistent with the decision. The Board remanded for such development in January 2020, and the issue is now back before the Board. Entitlement to service connection for lumbar spine disability Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air 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 injury or disease; and (3) a relationship between the two. 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 service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran was diagnosed with mild lumbosacral degenerative joint and disc disease in a September 2010 VA examination. A November 2020 VA examination also reported 2003 diagnoses of degenerative arthritis of the spine and spinal stenosis. As such, he has met the current disability element. Regarding the in-service element, the Veteran contends that he injured his back in service in 1967 during basic training when he jumped over a wall on an obstacle course and "pulled everything loose" in his lower back. At sick call the next day, he was treated conservatively, and he continued to have persistent back pain until this day. The Veteran's service treatment records reflect a January 1968 notation of back pain. At his separation examination two months later in March 1968, no back pain was noted, and an examination performed in May 1972 was silent as to back complaints. The Veteran has consistently indicated he experienced back pain since the in-service injury. He noted his back pain has been continuous since service in a June 2006 notice of disagreement, a December 2007 statement and a December 2008 statement, noting he hurt his back in service, has suffered since, and the pain has continued to get worse. In an April 2009 claim, the Veteran stated the back pain from his time in the Army has contributed to his pain and suffering up to now, and a July 2010 primary care physician note reflected persistent lower back pain by the Veteran. On his November 2010 substantive appeal to the Board, the Veteran indicated he has not recovered from his back pain in service. Multiple medical opinions are of record. In April 2009, a private physician asked that VA reconsider its denial of the claim, noting that the Veteran had provided her with documentation of his initial visit at the Army Tag Center in Fort Benning, GA for his complaint, that the Veteran continued treatment for his lumbar spine disability on and off since service, and concluded that he has suffered from back problems since his time in service in 1967, presumably referring to the basic training incident. A September 2010 VA examiner provided a negative medical opinion that was not sufficient for adjudication and the Board remanded the claim for another examination in August 2015 to determine the etiology of the Veteran's lumbar spine disability. An April 2016 VA examiner provided a negative medical opinion concluding that even if a back injury were to have occurred in service, the Veteran's symptoms were resolved by the May 1972 examination report and thus it is less likely than not that his reported back pain in service predisposed him to his present lumbar spine disability. In December 2017, the Board relied on this opinion to deny the claim. However, in May 2019, the Court set aside the Board's December 2017 decision because, inter alia, the Board did not properly consider the Veteran's lay statements, and the Board also did not address the April 2009 opinion from the private physician. Following a January 2020 Board remand, a January 2021 VA examiner provided a negative opinion, noting that since the 1968 note of back pain in the Veteran's service treatment records, no further mention is made during service noting back complaints, while also pointing to the Veteran's entrance examination, separation examination and May 1972 examination that were silent to back complaints. The examiner dismissed the April 2009 private opinion by noting there is no evidence in the record to substantiate the opinion, while acknowledging the Veteran's reports of treatment for back condition for decades and noting that he is not qualified to ascribe those symptoms to a diagnosis or etiology. The examiner concluded that a nexus cannot be established because of the significant gap in care and the inconsistency in the date of onset of care. While the January 2021 VA examiner considered the April 2009 private opinion and the Veteran's statements contending his back pain has been continuous since service, which the examiner deemed credible, she relied on the lack of evidence in the medical records supporting these conclusions as the basis for the negative opinion. However, credible lay evidence concerning continuity of symptoms after service is competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). It is true that there is not supporting medical evidence for the Veteran's statements or the April 2009 private opinion, but there is also nothing explicitly contradicting the Veteran's statements. The January 2021 VA opinion is afforded little probative value as it relied in part on the lack of contemporaneous medical evidence while dismissing the Veteran's statements and the April 2009 private opinion regarding continuous symptoms. While the Board could remand the case again for yet another opinion, such a request 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, 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)). The above evidence is sufficient to decide the claim, as it is evenly balanced as to whether the Veteran's current lumbar spine disability is related to his in-service back injury. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in the Veteran's favor, entitlement to service connection for lumbar spine disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board JR Cummings, 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.