Citation Nr: 21031789 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-02 324 DATE: May 24, 2021 ORDER Entitlement to service connection for degenerative disc disease (DDD) with intervertebral disc syndrome (IVDS) of the lumbar spine is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's DDD with IVDS of the lumbar spine is related to service. CONCLUSION OF LAW The criteria for service connection for DDD with IVDS of the lumbar spine have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for lower back injury. Given the specific diagnoses of the Veteran's lower back discussed below, the Board has recharacterized the issue as service connection for DDD with IVDS of the lumbar spine. In May 2019, the Board remanded the Veteran's appeal to the RO for further evidentiary development. Entitlement to service connection for DDD with IVDS of the lumbar spine The Veteran contends that he injured his lower back in March 1972 and he has had back pain continuously since that time. 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. § 1110; 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). Turning to the evidence, a March 1972 treatment record indicates that the Veteran underwent X-ray imaging of his lumbar spine and that his spine was within normal limits. The Veteran's July 1972 separation medical examination found his spine to be normal. A report of medical history at the time of his separation from service is not in evidence. The Veteran reported back pain in a June 2009 private treatment. The doctor noted that the Veteran attributed it to falling during service. The Veteran said that he had recovered from the original injury but that his back is now very frequently reinjured. In his August 2013 claim, the Veteran said that he injured his back when he fell backward out of an aircraft which was in the ship's hangar bay. In an August 2013 letter, the Veteran said that other treatment records are not available because of office closings and the destruction of old records. A May 2014 Disability Benefits Questionnaire, citing recent X-rays, diagnosed degenerative disc disease, L1-L5. An accompanying medical nexus opinion was negative, but that opinion was based on the incorrect factual premise that there was no evidence of injury during service. In June 2014, the Veteran said that he was treated by a Dr. T. in the 1970s for a back condition, but the records are no longer available and the doctor is now deceased. The Veteran testified before a Decision Review Officer in October 2015. He said that roughly 12-18 months after separating from service he reinjured his back by merely bending to pick something up from the ground, resulting in extreme pain and requiring treatment. The Veteran also said that he has required periodic treatment for his back since the mid-1970s. The record includes letters from friends of the Veteran, stating that he has had recurring back issues since the 1970s which he told them are related to an injury in service. In January 2016 letter, the Veteran said that he has seen various doctors for treatment of his back condition and that he has "dealt with this pain since day one at various levels." In November 2019, the Veteran submitted a list of health care providers who have treated his back since 1972. A January 2020 Disability Benefits Questionnaire for back conditions diagnosed degenerative disc disease L1-L5, intervertebral disc syndrome, and lumbar radiculopathy of the bilateral lower extremities. An accompanying medical opinion was based on the incorrect premise that the earliest medical evidence of a back injury was in September 2017, but the record includes treatment records for back pain as early as 2009. The Veteran contends service connection is warranted for the currently diagnosed degenerative disc disease of the lumbar spine. For the following reasons, the evidence is at least evenly balanced as to whether the in-service back injury is related to the current degenerative disc disease. The Veteran is competent to report back pain and his medical history. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). His reports concerning a continuity of symptomatology for back pain are plausible. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran in weighing evidence). The current medical evidence confirms DDD and IVDS of the lumbar spine. Although medical records between 1972 and 2009 are not available, the Board will not make a negative inference because of lack of medical treatment. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence"). Overall, the evidence is at least evenly balanced as to in-service injury continuous symptoms since service for the low back pain, now diagnosed as IVDS and DDD. The May 2014 and January 2020 medical opinions are not probative in light of their inaccurate factual premises and lack of consideration of the Veteran's lay statements. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993))); Buchanan, 451 F.3d at 1336, n.1) (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"). The evidence is thus at least evenly balanced as to whether the Veteran's DDD with IVDS of the lumbar spine 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 DDD with IVDS of the lumbar spine is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 ("[N]othing 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"). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.