Citation Nr: 21031323 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-43 585 DATE: May 21, 2021 ORDER Entitlement to service connection for a back condition is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's low back disability began during active service and has been continuous to the present. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for low back disability have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 2009 to September 2013. This matter comes before the Board of Veterans Appeals (Board) on appeal from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded by the Board in January 2019, to obtain a VA examination for the Veteran's sleep apnea. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). An examination was obtained in May 2019; the Board will therefore proceed with a decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a back condition Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, the Veteran seeks entitlement to service connection for a back condition. The Veteran's medical records show recurring complaints of chronic back pain, and the May 2019 VA examination confirmed a diagnosis of lumbosacral strain. Therefore, the first element of service connection has been met. The Veteran's service treatment records (STRs) do not document any back injuries or complaints or back pain. While this lack of documentation is a factor that weighs against the Veteran, it is not dispositive; unfortunately, it is not uncommon for injuries during active service to go undocumented, and the Board must acknowledge this reality when weighing the evidence. Lay testimony, including a veteran's own testimony, can generally be used to establish the occurrence of events in service if VA finds the testimony credible. The Veteran has repeatedly testified that he injured his back by falling off a trailer during service in 2011, that he treated his pain with over-the-counter medication thereafter, and that he has had chronic back pain ever since. There is nothing in the record to impugn the Veteran's credibility, and the details of his story have remained the same for at least five years. The Veteran has consistently given the same story not just while seeking benefits, but in the course of receiving medical treatment; since at least December 2015 (the date of the earliest post-service medical records in the claims file) the Veteran has been treated by VA for back pain, and told providers that this pain began when he "fell off the back of a truck" in 2011. The events the Veteran claims led to his back injury are consistent with his military occupational specialty (MOS), Automotive Maintenance Technician, and are facially plausible. The Board therefore finds the Veteran's account of his injury to be credible, and finds that the second element of service connection has been met. As to the third element, in May 2019 the Veteran underwent a VA examination to determine the etiology of his back condition. The May 2019 examiner found that it was less likely than not that the Veteran's back condition was related to his military service; the examiner's only rationale was "I was unable to find a record of [a] back injury in service." The examiner did not give proper consideration to the Veteran's lay testimony, nor did they offer an explanation of what else may have caused the Veteran's back disability. The May 2019 examination does not give an adequate rationale for its negative nexus opinion, and therefore cannot be a basis to deny the Veteran's claim. The remaining question is, must the Board remand for a new examination, or is there sufficient evidence in the record to support a grant? In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Just as the Veteran has consistently described an in-service back injury in 2011, both as part of his claim for service connection and in his treatment records, he has always reported that his back pain began with this incident and has been continuously present ever since. The Board again finds his testimony to be credible. In addition to the earlier findings on the Veteran's general credibility, his earliest available post-service medical records (from December 2015) describe a history of "chronic" back pain; considering that the Veteran only separated from service in September 2013, an established history of back pain just 2 years later corroborates his testimony that this pain had its onset during service. The Board further finds that he is competent to report the onset of his back pain, and the continuous symptoms he has experienced since service. Weighing the lack of documentation of a back injury in the Veteran's STRs and the absence of a complaint of back pain at his separation examination, versus the Veteran's competent and credible lay testimony supported by his post-service treatment records, the Board finds that the evidence is at least in equipoise as to whether the Veteran's back disability is related to his military service. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for a back disability is therefore granted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.