Citation Nr: 22010263 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 17-28 755A DATE: February 23, 2022 ORDER Entitlement to service connection for a lower back condition is granted. Entitlement to service connection for a neck condition is granted. FINDINGS OF FACT 1. The Veteran's lower back disability is at least as likely as not etiologically related to her active-duty service. 2. The Veteran's neck disability is at least as likely as not etiologically related to her active-duty service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a lower back condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for establishing entitlement to service connection for a neck condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1987 to September 1991 and from January 2006 to March 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran was scheduled for a hearing via live videoconference in October 2021. However, she failed to appear for her hearing and did not submit a request to reschedule. Thus, due to the Veteran's no show, the hearing is considered withdrawn. See 38 C.F.R. § 20.704(d). The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. Here, the Veteran's service treatment records were added to the claim's file after the rating decision on appeal, and as such, the Board will review the claim on a de novo basis. Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Lower Back and Neck At the outset, the Board notes that the essential facts of the Veteran's claims for entitlement to service connection for a lower back disability and a neck disability are essentially identical. In addition, the resolution of these claims involves the application of identical law to similar facts. As such, in the interest of judicial economy these issues will be addressed together. The Veteran seeks service connection for a lower back condition, and a neck condition, which she contends originated in service. The medical evidence confirms that the Veteran has current diagnoses of C5-6 Spondylosis and degenerative arthritis of the spine. See April 2017 VA Back Conditions examination; April 2017 VA Neck Conditions examination. The central issue that must be resolved is whether the Veteran's current disabilities originated in service or is otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially, the Board notes that the Veteran's service treatment records (STRs) contain complaints of, and treatment for, lower back and neck pain. Specifically, the Board notes a July 1991 treatment note indicating the Veteran had experienced neck pain for 6 months, a May 1991 treatment note indicating the Veteran experienced continuous lower back and neck pain, and an April 1991 treatment note indicating the Veteran went to physical therapy for her cervical spine. The Veteran was provided with a January 1992 VA General Medical examination. Therein, the Veteran reported that while in military service she injured her neck in an accident where she hit her head on the bottom of a swimming pool and had been experiencing neck pain ever since. The examiner diagnosed her with chronic neck pain with an unclear etiology. The Veteran submitted a June 2016 private medical opinion from a Dr. D.R. In this opinion, Dr. D.R. noted that he had reviewed the Veteran's cervical x-rays and noted that the Veteran's cervical spine findings are consistent with the trauma she reported sustaining during her military career. Further, he opined that this injury was likely the source of her chronic neck pain. Next, the Veteran was provided with April 2017 VA Back and Neck Condition examinations. Regarding the Veteran's neck, the examiner diagnosed her with C5-6 spondylosis. During the examination, the Veteran reported that in 1991 she injured her neck doing a back somersault into a swimming pool, where she landed on her head. She noted that she was treated with motrin and had constant neck pain since the in-service injury. The examiner noted that the Veteran experienced neck pain which resulted in functional impairment. However, the examiner opined that the Veteran's neck condition was less likely than not (less than a 50 percent probability) etiologically related to her active-duty service. The rationale provided was there is limited information in the Veteran's claims file and a gap from 1992 to 2016 in which the Veteran reported neck pain. Regarding the Veteran's back condition, the examiner diagnosed the Veteran with degenerative arthritis of the spine and noted that the Veteran experiences pain which causes functional loss. During the examination, the Veteran again reported her pool injury and that she has had lower back pain since that time. The Veteran further noted that she has sought chiropractic treatment and pain medication over the years due to her back pain. The examiner opined that the Veteran's back condition was less likely than not (less than a 50 percent probability) etiologically related to her active-duty service. The rationale provided was there was insufficient evidence to support the Veteran's claim of a back injury due to her injury in 1991. Throughout the record, the Veteran has provided multiple lay statements wherein she recounts her injury doing a backflip into a pool and landing on her head. She continually reported experiencing pain in her back and neck since this accident. The Veteran also provided a statement from her mother. In this statement, the Veteran's mother reported that the Veteran injured herself at a swimming pool and when she came home, she was reeling from back and neck pain. The mother continued that the Veteran went to a chiropractor and received pain medicine for her neck and back and that she continued to have pain and see a chiropractor since her 20s due to this injury. The Veteran also submitted a lay statement from a J.R. who was stationed with her while she was a Drill Sergeant. J.R. noted that he witnessed the Veteran in pain during many road marches and obstacle courses, that she took motrin every day, and that she told him she hurt her back when she was younger during an accident trying to do a flip into a pool. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The VA examiner's opinions are based on a lack of evidence of chronicity of care and a lack of treatment records documenting pain from service to present day. However, the Board notes, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. at 496. As noted below, the Veteran has offered competent and credible evidence of continuity of symptomatology. Further, the Board notes that the examiners did not discuss the Veteran's competent lay statements addressing her pain from service to present day. Therefore, the medical opinions that are based on a lack of review of the entire treatment record regarding the Veteran's low back and is of limited probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that the Board may afford weight to an opinion based on factors such as reasoning employed, whether the opinion is based on sufficient facts and data, and whether the opinion is based on medical principles applied to the facts of the case). Additionally, the VA examiner acknowledged that the Veteran was experiencing low back, and neck, pain and that the pain was related to her current conditions. The Board has considered the Veteran's lay statements in support of her claim. She is competent to report symptoms, such as pain, because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, she is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In this case, the Veteran has reported that she experienced low back and neck pain since service, which has persisted and progressively worsened ever since. The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Additionally, the Veteran's lay statements are consistent with other medical evidence in the record. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran's own reports of experiencing ongoing pain to be at least as probative as the above-noted VA examiner's findings, as the Veteran is truly the only person capable of such observation. Given the evidence discussed above, the Board finds that the evidence of record is approximately evenly balanced as to whether the Veteran's lower back and neck disabilities are at least as likely as not etiologically related to her active-duty service. The evidence is thus at least evenly balanced as to whether the Veteran's current conditions are related to the in-service reports of, and treatment for, her back and neck. 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 the Veteran's lower back and neck conditions is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.