Citation Nr: 21031814 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 14-41 440 DATE: May 24, 2021 ORDER Entitlement to service connection for a back disability is granted. FINDING OF FACT The competent and credible evidence of record is in equipoise as to whether it is at least as likely as not the Veteran developed a back disability as a result of his active service. CONCLUSION OF LAW The criteria for a grant of service connection for a back disability are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1970 to April 1972, to include service in Vietnam. His decorations include the National Defense Service Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal with device, among others. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018 and September 2020, the Board remanded this matter for further evidentiary development. Entitlement to service connection for a back disability is granted. The Veteran maintains that his back disability is caused by his military service, to include a jeep accident while serving in Vietnam. See, e.g., September 2009 VA Form 21-4138 (Statement in Support of Claim). Service treatment records do not mention a jeep accident. However, the Board notes that the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). Furthermore, his statements are consistent with the circumstances of his combat service in Vietnam, and the Board finds that there is credible evidence of in-service back injury. Following active service, the Veteran submitted a statement in October 1980 indicating that he had back pain, among other complaints. A December 2004 VA primary care intake note indicated that the Veteran had a history of back injury two years prior. In April 2013, an x-ray showed mild anterior compression fracture of L1. At a September 2019 VA examination, the examiner diagnosed degenerative arthritis of the spine. The Veteran reported that he was involved in a motor vehicle accident (MVA) where the vehicle fell on top of him. He reported that he was in the mud and the jeep was on top of his abdominal area. The Veteran stated that the pain got progressively worse over the years. The examiner noted a June 2016 CT revealed mild degenerative changes including lower facet hypertrophy. The examiner opined that the Veteran's back disability was less likely as not related to service, reasoning that there was no evidence of the reported MVA in service and the record was silent for back complaints until 2016. The examiner further reasoned that mild degenerative arthritis is a common finding in patients over the age of 50. In a June 2020 VA addendum opinion, the examiner again concluded that it was less likely than not that the Veteran's lumbar spine disability was related to service. The examiner reasoned that "medical evidence and medical literature does not support. A nexus has not been established. Osteoarthritis of the spine, usually in the neck or lower back. This is a condition of the discs between vertebrae with loss of cushioning, fragmentation and herniation related to aging." In an October 2020 private medical opinion, the examiner opined that the Veteran's compression fracture of L1 is at least as likely as not a result of the MVA in Vietnam. The examiner noted that vertebral compression fractures (VCFs) of the spinal column occur secondary to an axial/compressive load with resultant biomechanical failure of the bone resulting in a fracture. The thoracolumbar junction (i.e., the segment from T12 to L2) is the location afflicted with 60 to 75 percent of VCFs in younger patients (Veteran was 22 at the time of the MVA), about 50 percent of spinal fractures are due to motor vehicle collisions. The examiner further reasoned that it is not uncommon to delay reporting of significant back pain. Lack of self-reporting often occurs as the service member does not want to be seen as a complainer or unable to perform duties which can delay or circumvent promotions. Physiologically, the initial injury may not result in significant pain. Over time, repeated stressors on the back result in numerous tears in the annual fibers of the intervertebral disc which distribute pressure evenly across the spine. As these tears increase over time, the disc degenerates and produces more and more symptoms. There are numerous small blood vessels surrounding the spinal cord and nerve roots are paramount to delivering nutrition, oxygen, and chemo modulators. The compression of these structures limits the ability of these vessels to deliver these vital nutrients, resulting in an ischemic effect of the structure. The subsequent inflammation from intervertebral disc compression results in ischemic pain along the path of the nerve root. Following a November 2020 VA spine examination, the examiner opined that it was less likely than not that the Veteran's back disability was incurred in or caused by service. In support of that conclusion, the examiner explained that while there may have been a Jeep accident in 1971 where the Veteran could have injured his back, there was no evidence of any sequelae on the separation examination in 1972; that the 2013 and 2016 imaging of the lumbar spine, noting degenerative changes, are from age-related degenerative arthritis of the spine, considering the timing of the x-rays; and that after review of the medical opinion from 2019 and other pertinent records there is insufficient medical evidence to support the diagnosed degenerative arthritis of the spine as resulting from an in-service event. The examiner also opined that history of the Veteran's symptoms appear to be consistent with when the pain developed; that the Veteran attested that the majority of his symptoms started in 1973 after separation from service and that this further suggests that the Veteran's claimed condition did not result from an in-service event. (Continued on the next page) After review of the evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds the evidence is at least in equipoise as to whether the Veteran's current back disability is related to service. As noted above, the Veteran has a current diagnosis of degenerative arthritis of the spine, and he has credibly reported an injury during service in Vietnam. As to the remaining element of nexus, the September 2019, June 2020, and November 2020 examiners did not relate the Veteran's back disability to service, whereas the October 2020 VA examiner did. However, as the Board found in the previous remand, the September 2019 and June 2020 opinions were inadequate as they failed to address relevant evidence of record. Consequently, the remaining competent and probative opinions of record are in equipoise. The Board thus grants entitlement to service connection for a back disability. Roya Bahrami Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Willis, 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.