Citation Nr: 21042292 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-15 693 DATE: July 12, 2021 ORDER Entitlement to service connection for intervertebral disc syndrome is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his lumbar spine intervertebral disc syndrome is at least as likely as not related to injury in service. CONCLUSION OF LAW The criteria for service connection for intervertebral disc syndrome are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1980 to October 1988. He and his spouse testified before the undersigned Veterans Law Judge at a videoconference hearing in April 2021. The transcript is of record. 1. Entitlement to service connection for intervertebral disc syndrome Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). The Veteran has a current diagnosis of intervertebral disc syndrome and was in a motor vehicle accident during service. These satisfy the first two elements of service connection. The question for the Board is whether there is a nexus between the two. The Board finds that there is at least an equal amount of evidence for and against nexus and accordingly the benefit of the doubt should go to the Veteran. A summary of the facts are as follows. The Veteran was involved in a motor vehicle accident in September 1980. He reported having pain in the buttocks, but not in the back. The Veteran had only one subsequent mention of pain in his service treatment records in May 1987. However, the Veteran testified in April 2021 that he continued to have pain in his back throughout. He explained the pain was not typically to the level that he thought reporting would be beneficial, which is why there are no other records pertaining to his back. After service the Veteran did not have immediate reports of back pain, which he attributed to lack of insurance and working through it. He did file job-related claims for back injury. His back worsened to the point of needing surgery in 2011. VA examined the Veteran in February 2014 and the examiner opined against service connection. He noted that the only back condition explicitly mentioned was the May 1987 pain, but he explained that this was not a chronic condition. He also distinguished the motor vehicle accident as affecting the Veteran's buttocks instead of back. The Veteran provided his own opinions from two doctors. The first physician opined that his back surgery was to treat foraminal stenosis that was due to spondylolisthesis at L5-S1 caused by an L5 spondylolysis (pars fracture). According to the doctor, this condition typically occurs in adolescence and it was possible that it was caused by his in-service motor vehicle accident. A separate opinion unequivocally stated that it was at least 50% likely that the motor vehicle accident that the Veteran endured in service was the cause of the original trauma, characterized as a spinal fracture, which subsequently deteriorated to the point that surgery was required. The Veteran also provided a written statement that cited to an article holding that gluteal (buttock) pain is a common symptom of lumbar disc herniation. The cited article was not provided. There is accordingly evidence that could support denying the claim (e.g. negative VA opinion, time delay between service and surgery, and intervening job-related claims of injury) and evidence that could support granting the claim (e.g. positive private examination, lumbar disc herniation article, likelihood of injury being incurred when in adolescence). As the evidence is at least equal, the benefit of the doubt rule is applicable, and service connection shall be granted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Saindon, 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.