Citation Nr: 21040026 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 10-19 801 DATE: July 2, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is granted. FINDING OF FACT Resolving the benefit of the doubt in favor of the Veteran, the Veteran's lumbar spine disorder is related to his military service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder have been met. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1987 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before a Veterans Law Judge that is no longer with the Board in June 2013. A transcript of the hearing is of record. The Veteran waived a second hearing in June 2017. The Board remanded this matter in June 2014. In a July 2017 decision, the Board denied the Veteran's appeal. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2018 Order and Joint Motion for Remand (JMR), the Court vacated the Board's July 2017 decision and remanded the matter to the Board for further adjudication. In a November 2018 decision, the Board again denied the Veteran's claim. In June 2020, the Court issued a Memorandum decision setting aside the Board's November 2018 decision and remanding the claim for readjudication. The Board subsequently remanded this claim in January 2021. The Board finds there has been substantial compliance with its January 2021 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) The Board notes that some of the Veteran's service treatment records are missing from the record. In cases where records are lost or presumed lost, a heightened duty is imposed on the Board to consider the applicability of the benefit of the doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records are not available. See Russo v. Brown, 9 Vet. App. 46 (1996). Entitlement to service connection for a lumbar spine disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in service. This may be accomplished by affirmatively showing inception during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303. Competency is a legal concept in determining whether medical or lay evidence may be considered - in other words, whether the evidence is admissible as distinguished from weight and credibility, which involves a factual determination going to the probative value of the evidence (i.e., does the evidence tend to prove a fact, once the evidence has been admitted). Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. Id. If the favorable evidence outweighs the unfavorable evidence or if the favorable and unfavorable evidence are in relative equipoise, the Veteran prevails and the claim must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The Veteran contends that his lumbar spine disorder is related to his military service. Specifically, the Veteran asserts that he was in a car accident in service where he injured his back and legs. Available service treatment records are silent for complaints, treatment, or diagnosis of a lumbar spine condition, but, as noted above, many of his service treatment records are missing. The Board notes that the Veteran's DD-214 shows that his last duty assignment was at "DEPMED FH15 NAVHOSP JACKSONVILLE, FL." It shows that he received a separation payment of $12,253.68. In May 1992, an x-ray was ordered for the Veteran's lumbar spine based on complaints of back pain due to a motor vehicle accident. X-ray results showed a normal lumbosacral spine. In an August 1993 service treatment record, another x-ray was ordered due to the Veteran's complaints of lower back pain for 1 1/2 years. The bone scan was normal. The Veteran filed a worker's compensation claim in July 2007 after injuring himself while moving a pallet of soft drinks. The Veteran said he felt something pop in his back and subsequently had trouble walking. Dr. J.H. did not note any accidents, injuries, or similar problems in the past on the Veteran's medical history. The Veteran underwent back surgery in September 2007. In August 2008, the Veteran was seen for an injury lifting a container of syrup after returning to work. A lumbar myelogram was performed and showed postoperative changes at L3-4 with back pain. In a June 2009 request to reconstruct medical records, the Veteran said he had a lower back injury and was treated from August 1993 to March 1995. In a November 2009 statement, the Veteran said that he hurt his lower back in 1993 and was put on light duty. He said he also received treatment at NAS Jax Naval Hospital. In a July 2011 statement, the Veteran's former attorney said that he represented the Veteran in a claim for injuries sustained in an automobile collision that occurred in the late 1990s. He specifically suffered injuries to his neck and low back. The attorney no longer had access to the Veteran's records but said that this represented his "best good faith memory." At the June 2013 Board hearing, the Veteran testified that he was in a car accident in service in 1990. He said he was driving in Jacksonville, Florida, when a car hit him, causing damage to his back and legs. He stated that he was treated at NAS Jax Hospital after the accident, where he underwent pain management and orthopedic surgery for about a year and a half. The Veteran said that the injury he sustained in 2007 when he filed for his worker's compensation aggravated his old injury from the car accident. In a February 2017 VA examination, the examiner noted a diagnosis of lumbosacral strain in 1993. The Veteran said that the onset of his symptoms began in 1993 when he was injured in a car accident. He said he was seen in the emergency room and received epidural injections and physical therapy. The Veteran stated that the condition had stayed the same since then. In a separate February 2017 VA opinion, the examiner opined that the Veteran's lumbar spine disorder was less likely than not related to service. The examiner stated that after reviewing medical records dated August 24, 2007, July 22, 2008, April 1, 2008, and September 2, 2008, and performing physical exam, it was less likely than not that the Veteran's back condition was related to military service. The examiner said there were no records of the Veteran sustaining a back injury while in service. The Veteran left active duty in 1995 and was not diagnosed with a back condition until 2007. Overall, the Board finds that based on the evidence, and giving the Veteran the benefit of the doubt, the Veteran's lumbar spine disorder is related to service. The Board notes that the Veteran's 1992 and 1993 x-ray findings showed the Veteran's back to be normal. However, the Veteran still complained of back pain due to a motor vehicle accident and for at least another year and a half. Pain can be considered a disability for VA purposes. Saunders v. Wilkie, No. 17-1466 (Fed. Cir. 2018). The Board acknowledges the negative February 2017 VA opinion; however, the Board finds this opinion inadequate for several reasons. First, the examiner noted a diagnosis of lumbosacral strain in 1993 but then determined the Veteran did not have a diagnosed back condition until 2007. This is conflicting and inconsistent. Second, the examiner based his opinion on a lack of contemporaneous records, which does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Third, the examiner did not consider the findings that in 1992 and 1993 the Veteran underwent x-rays for back pain due to a motor vehicle accident. Finally, the examiner failed to address or consider the Veteran's lay statements as probative considering that there are missing service treatment records. Therefore, the Board finds the February 2017 VA examiner's opinion less probative. The Board also acknowledges the Veteran's varying accounts of what year he was in the car accident. However, the Board overall finds that medical records from 1992 do show that the Veteran had back pain due to a car accident. Additionally, the record is consistent in the fact that there was a car accident at some point during service as the Veteran, his former attorney, and the medical records have pointed to it happening sometime between 1990 and 1993. Moreover, the Veteran's DD-214 shows that his last duty assignment was at "DEPMED FH15 NAVHOSP JACKSONVILLE, FL." It shows that he received a separation payment of $12,253.68. Therefore, the Board finds that there was a car accident that the Veteran received treatment for based on the medical records from 1992 and 1993 and the overall probative lay statements of record. Thus, in light of the Veteran's missing service treatment records, the competent and credible lay statements in support of his claims, and the medical treatment records showing treatment for back pain during service in support of his claim, the Board resolves reasonable doubt in his favor and herein grants service connection for a lumbar spine disorder. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brown, Saudiee 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.