Citation Nr: 22012215 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 15-17 425 DATE: March 2, 2022 ORDER Entitlement to service connection for a low back disability is granted. FINDING OF FACT Resolving reasonable doubt in Veteran's favor, the evidence of record demonstrates it is at least as likely as not that the Veteran's low back disability is etiologically related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1979 to July 1986. The only available DD-214 of record showed service from July 1979 to July 1983; however, a response for request for information in January 2010 verified that the Veteran had additional service from July 1983 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of background, the Board previously denied the Veteran's claim in an April 2019 decision. The Veteran appealed the Board's April 2019 decision to the United States Court of Appeals for Veterans Claims (Court). An October 2020 Court memorandum decision vacated and remanded the issue on appeal. Specifically, the Court determined the Board did not lay the proper foundation for its reliance on the absence of documented treatment for nine years after the Veteran's service for his low back disability and did not account for potentially favorable material evidence in finding the Veteran was not credible. As such, the issue was returned to the Board for readjudication. The Board notes that the issue of entitlement to service connection for a low back disability was initially denied in a May 2010 rating decision. The Veteran filed a claim to reopen in August 2011. In the April 2019 decision, the Board reconsidered the issue of entitlement to service connection for a low back disability. The October 2020 Court memorandum decision remanded the issue of entitlement to service connection for a low back disability for readjudication. Therefore, the issue of whether new and material evidence was received to reopen the claim is not before the Board. The Veteran provided testimony at a November 2018 video conference Board hearing. A copy of the transcript is of record. In correspondence dated in November 2021, the Veteran was notified that the VLJ who conducted his November 2018 hearing was no longer employed by the Board, and given the option to request another Board hearing. As the Veteran did not respond to the November 2021 correspondence, the Board will assume that he does not want another hearing and proceed accordingly. Entitlement to service connection for a low back disability. The Veteran seeks service connection for a low back disability. Specifically, the Veteran asserts that his low back disability began in service and has continued since that time. See November 2009 VA Form 21-526; September 2012 Notice of Disagreement (NOD); November 2018 hearing transcript. Generally, service connection may be established on a direct incurrence basis for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (1) existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) the existence of a chronic disability in service or during an applicable presumption period under 38 C.F.R. § 3.307 and present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Under 38 C.F.R. § 3.303(b), continuity of symptomatology is an alternative route to establish service connection for specific chronic diseases, including arthritis, and can only be used in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The evidence of record demonstrates the Veteran was diagnosed with spondylolisthesis, disk herniation of the lumbosacral spine, spondylolysis, and chronic back pain. See February 2010 VA examination; August 1994, August 2006, and December 2011 VA treatment records; October 2002 private treatment records. Therefore, presence of a current disability has been met. See Shedden, 381 F.3d at 1167. In regard to an in-service event, injury, or disease, the Board finds that the Veteran has consistently reported that he injured his back in service; specifically, the Veteran reported that his back problems began in 1979 after he fell from a top bunk during boot camp, and experienced back pain during physical training that was diagnosed as a muscle strain. See August 1979 service treatment records. The Veteran also underwent a circumcision under spinal anesthesia and reported back pain at the site of the spinal punctures and was given five days of convalescent leave during service. See June 1983 service treatment records. Further, the Veteran is competent to provide lay evidence of the existence of symptoms that are capable of lay observation and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds that the Veteran is competent and credible to assert that he experienced observable back pain in service that is further supported by his report of low back pain on multiple occasions during his active duty service. As such, the second element of service connection has been met. See Shedden, 381 F.3d at 1167. In regard to the third element of service connection, the Veteran was afforded a VA examination in February 2010. The Veteran reported that his back pain began in 1979 when he fell during boot camp and that it has been intermittent ever since. See February 2010 VA examination. The VA examiner opined that the Veteran's low back disabilities were not related to his service. Id. As rationale, the VA examiner stated there were only two isolated incidences of back pain in August 1979 and his record contained no other complaints between 1979 and 1983. Id. The VA examiner stated that there were no sequelae to these two episodes in August 1979. Id. The VA examiner noted the Veteran did not report recurrent back pain at his June 1985 separation examination and that the separation examination was silent for any back problems. Id. In an addendum medical opinion, the VA examiner again stated that the Veteran's low back condition was not related to his time in service as he only had two isolated incidences from August 1979 where he complained of low back pain and there are no sequelae to these occasions and no other complaints noted on his back from 1979 to 1983 when he got out of service. See March 2010 addendum medical opinion. The VA examiner noted medical history from 1985 was negative for any back complaints. Id. However, the Veteran served on active duty from July 1979 to July 1986 and reported back pain in June 1983 while on active duty. Therefore, the February 2010 VA examination and March 2010 addendum medical opinion are inadequate for decision making purposes as they are based on an inaccurate factual premise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Moreover, the VA examiner did not address the Veteran's lay statements regarding experiencing pain since August 1979 and did not have the opportunity to review VA treatment records that were associated with the claims file in April 2015 demonstrating low back treatment back to August 1994. The Board notes that a Veteran may be competent and credible to provide a lay opinion as to the nexus or etiology of a disability depending on the nature of the disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. Moreover, in appropriate situations, the Veteran can report symptoms to establish the link between an in-service incurrence and subsequent diagnosis of a disability. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. In this case, the Veteran has consistently reported that his back pain began in service and has continued since service to medical providers. For example, the Veteran reported falling in boot camp in 1979 and reported low back pain since that time when he sought treatment in August 1994. See August 1994 VA treatment records. The Veteran continued to report and relate his low back pain to his service, including reporting that his back pain has been intermittent and progressed since service. See October 2002, February 2003, August 2006, September 2008, May 2009, December 2011, June 2021 VA treatment records. The Veteran testified that he initially injured his back after he fell of the top bunk during boot camp and has pain since then, which was aggravated after he received spinal anesthesia in 1983. See November 2018 hearing transcript. The Veteran further testified that he sought treatment in 1986 from a civilian doctor and starting seeing a doctor who gave him pain medication in 1987. Id. In support of his claim, the Veteran provided a November 2014 private medical opinion. The private physician opined that the Veteran's low back condition was at least as likely as not related to his active duty and has continued to date. See November 2014 private medical opinion. As rationale, the private physician noted records indicate injury to the Veteran's back in 1979 with visits in the early 1980's for further care; and he has over 30 plus years of physical therapy treatment, orthopedic evaluations, and multiple radiographic studies for his back pain. Id. The private physician indicated review of prior military records that were provided and conducted an orthopedic evaluation of the Veteran's condition. Id. As such, the Board finds the November 2014 private medical opinion adequate for decision making purposes. See Nieves-Rodriguez, 22 Vet. App. at 302. The Board notes there is no evidence to clinically distinguish between all of the symptoms of the Veteran's low back disabilities. Thus, in applying the benefit of the doubt doctrine, the Board attributes the Veteran's complaints of low back pain since service to his current low back disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Additionally, the Board finds the evidence of record is in relative equipoise. The Veteran provided an adequate private medical opinion determining a link between the Veteran's low back disabilities and his active duty service. The February 2010 VA examiner's medical opinion is inadequate for decision making purposes and there is no other competent medical evidence contrary to the November 2014 private positive nexus medical opinion. Additionally, the Board reiterates and finds the Veteran has credibly reported experiencing symptoms since his service that led to his diagnosis of a low back disability. (Continued on the next page) Based on the foregoing, and with resolving any doubt in the Veteran's favor, the Board finds that the Veteran's low back disability is related to his active duty service as his symptoms began in service, continued since service, and led to his current diagnosis. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(d); see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As such, service connection for a low back disability is granted on a direct incurrence basis. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.