Citation Nr: 22012605 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 17-46 813 DATE: March 4, 2022 ORDER Entitlement to service connection for a lumbosacral spine (low back) disability is granted. FINDING OF FACT It is just as likely as not the Veteran's low back disability began during his active military service or is related or attributable to his service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for a low back disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U. S. Marine Corps from June 1951 to June 1952 and from January 1953 to August 1954. In a September 2019 decision, the Board denied this claim for service connection for a low back disability, and, in response, the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In a July 2020 Order, granting a Joint Motion for Remand (JMR), the CAVC vacated the Board's decision denying this claim and remanded it back to the Board for further development and readjudication consistent with terms agreed on in the JMR. In a January 2021 decision, the Board again denied this claim, and, in response, the Veteran again appealed to the CAVC. In subsequently granting another JMR in October 2021, the CAVC again vacated the Board's decision denying this claim and again remanded it back to the Board for readjudication in compliance with directives specified hence, this still additional decision. As previously acknowledged, at least some, though not necessarily all, of the Veteran's service treatment records (STRs) are unavailable despite the local Regional Office's (RO's) multiple attempts to obtain them. Specifically, the RO requested records from the Tripler Army Medical Center in Hawaii, also from the National Personnel Records Center (NPRC) in St. Louis, and from Camp Pendleton in California. The NPRC responded that it did not have any records at that repository concerning this Veteran. A formal finding resultantly was made regarding the unavailability of these records, and the Veteran was appropriately notified. When, as here, STRs are unavailable or incomplete, the Board has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule. See, e.g., Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). See also Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005) ("[W]hen VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources"); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare, 1 Vet. App. at 367). The Board must also point out, however, that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claim. That is, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of 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 a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by suggesting a correlation between his claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367). Here, fortunately, after two prior decisions denying this claim, in this third decision the Board contrarily is finding there is sufficient evidence to instead warrant granting this claim since, at the very least, there is an "approximate" (nearly equal) balance of evidence for versus against the claim so the required relative balance of evidence (equipoise) to warrant granting rather than again denying the claim. Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Entitlement to service connection for a lumbosacral spine (low back) disability is granted Service connection is granted for disability due to disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or an injury in service; and (3) a nexus between the current disability and the disease or injury in service. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination of whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its competency and credibility to, in turn, determine its ultimate probative value in relation to other relevant evidence. Baldwin v. West, 13 Vet. App. 1 (1999). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Turning now to the contentions and relevant evidence in this case at hand, the Veteran contends that service connection is warranted for his low back disability because it stems from the same incident in service that resulted in cuts on his forearm that are documented in his STRs as sustained in March 1952. He explains that, while stationed in Hawaii, a fire started in his bunker, that he was driving a jeep when the fire started, and that he located a fire extinguisher and fought the fire. But, during all that driving, getting in and out of his vehicle, and handling the extinguisher, he hurt his lower back on the right side, his left hand, and his forearm in handling the extinguisher. He adds that he was sent to the Tripler Army Hospital in Honolulu, Hawaii, for treatment of the injury to his back. The Veteran's available STRs do not mention any complaints or treatment for a low back injury. However, despite is report of treatment for his low back injury at Tripler Army Hospital in Honolulu, Hawaii, those records are unavailable to document that treatment. In September 2000, the Veteran underwent a VA compensation examination in response to this claim. The diagnosis was severe degenerative disc disease (DDD) of the lumbar spine involving five joint areas in his lower lumber spine. He reported being hospitalized for a low back injury in 1952 at Tripler Army Hospital and receiving a consequent diagnosis of low back strain. He also said he has had problems with his low back ever since. The VA examiner affirmed that he had reviewed the Veteran's records but did not find evidence of a back strain or a hospitalization during his service. This VA examiner indicated the Veteran had chronic pain in his back that was first intermittent and has become constant. This VA examiner also noted the Veteran had chiropractic treatment and injections and that, in October 1999, he also had an MRI of his lumbar spine under the direction of a private clinician. This VA examiner ultimately opined that, despite not being able to find any evidence of hospitalization at Tripler Army Hospital, it is more likely than not the Veteran's injury occurred in service as alleged. Though not a fact finder, this VA examiner indicated that he found the Veteran to be credible. A December 2000 letter and private evaluation from Dr. T.M. indicates that the Veteran reported exacerbation of chronic low back pain and knee pain. He said his symptoms had begun in 1952 while in the military. The letter goes on to state that the symptoms began while extinguishing a fire and climbing into and out of a jeep. It also was noted that he is a barber and that his job requires him to stand, aggravating his symptoms. In the assessment portion of the report, Dr. T.M. indicated the Veteran presented with signs and symptoms consistent with DDD and osteoarthritis. A December 2000 letter from Dr. K.S. indicates the Veteran was his patient from 1997 through 2000. Dr. K.S. explains the Veteran has certain medical conditions that most likely started during the time that he served in the military, though that was before he was under Dr. K.S.'s care. Dr. K.S. pointed out the Veteran has lumbar spine DDD that is a chronic medical condition that likely started in the military (1950's). A January 2013 letter from the Veteran's private physician, Dr. M.Y., indicates that the Veteran had been under his care since September 2012 and that the letter was being written at the Veteran's request. Dr. M.Y. indicates that he had performed comprehensive history on the Veteran and medical exams. Dr. M.Y. goes on to state that the Veteran has multiple back and neck problems that are consistent with repetitive wear and tear as well as recurrent trauma that apparently occurred years ago. Dr. M.Y. indicates that, given the Veteran's history, his medical problems most likely occurred during his military service in the 1950's An October 2013 letter and private new patient evaluation from Dr. G.O. indicate the Veteran is a retired law enforcement officer from the Sheriff's Department and a Marine Corps Veteran. The letter states that the Veteran presents with a history of chronic low back pain and right-sided neck pain with associated numbness radiating to both hands. The letter also states that he described an original injury that was service connected, involving putting out a fire with injury to his left hand, forearm, and low back. It was further noted that he had difficulty mobilizing and eventually was worked up in Honolulu with all records apparently being lost from the VA. The letter states that the Veteran's ongoing back pain led to his neck pain. Dr. G.O. reviewed October 2013 MRI of the cervical spine indicating moderate to severe central stenosis at C4-5 and C5-6, and that the stenosis seems to be more on the right than the left with some widespread facet arthropathy. Under impressions, Dr. G.O. noted status post low back injury that is service connected, resulting in increasing neck pain and restriction, particularly moving towards the left side with herniation and stenosis. Dr. G.O. concluded the Veteran has a chronic back condition related to his service. Pursuant to the Board's January 2019 remand of this claim, the Veteran was scheduled for a VA examination later in January 2019 for further medical comment concerning the etiology of his low back disability particularly in relation to his injury in service. However, he failed to report for the examination. In the prior January 2021 decision, the Board pointed out the Veteran had failed to report for that July 2019 VA examination without any justifiable reason or explanation (i.e., "good cause"). The Board ultimately determined that his current lumbosacral spine disability did not onset during his service, did not manifest to a compensable degree within the permissible one-year presumptive grace period following his discharge from service, and is not otherwise related or attributable to his service, including especially to the claimed April 1952 fire extinguisher injury. The Board determined that his reported history was not credible, noting that he had provided several inconsistent statements with respect to what treatment he had received in service, where he received it, and the consequent diagnosis. The Board also gave little-to-no probative weight to the positive nexus opinion or record because they were based on the Veteran's self-reported history, which the Board had not found credible. That said, the mere fact that an examiner bases an opinion on a history that has been provided by the Veteran, rather than, as an example, additionally on independent review of the claims file, does not automatically invalidate the opinion because the Veteran could be providing a credible history. However, if it shown the history is not credible or that evidence, if considered (but that was not), would affect the examiner's conclusion, then the basis of the opinion is undermined, and it consequently has less probative value or weight. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). See Reonal v. Brown, 5 Vet. App. 458 (1993) (An opinion is only as good and credible as the history on which it was based). However, in petitioning the Court to vacate the Board's decision denying the claim, the October 2021 JMR cited certain deficiencies in the Board's January 2021 decision denying this claim. The parties agreed that the Board did not provide adequate reasons and bases for challenging the Veteran's credibility by stating that his February 2000 letter reported being treated "only" at Tripler Army Hospital in Hawaii while he was also treated at Camp Pendleton for his low back injury. The JMR observed, the "Appellant did not state in his February 2000 letter that he was treated only at Tripler Army, so, it is unclear why the Board found his statement to be inconsistent with the fact that he was also treated at Camp Pendleton". Furthermore, the JMR noted, "to the extent the Board cited to the April 2016 SF 180 as stating that he was treated at Tripler Army Medical Center in April 1952, and then at Camp Pendleton in January 1953, the SF 180 does not show Appellant's report that he was treated for back pain at both places; instead, it only shows that he requested [STRs] from both places." Lastly, the parties agreed the Board had failed to provide an adequate statement of reasons or bases under Kyhn v. Shinseki, 26 Vet. App. 371, 374 (2013), for its finding that Veteran had failed to report to the July 2019 VA examination without good cause. After further review of the relevant medical and lay evidence, the Board finds the Veteran credible in his report of a low back injury during his service. Although there are no STRs substantiating his claim of a low back injury during his service, also of treatment and attempted rehabilitation in the aftermath, the mere absence of contemporaneous medical treatment during service, such as would be reflected in STRs, is not determinative of, instead, just a factor in deciding whether a disability now being claimed dates back to the Veteran's service or is otherwise related or attributable to his service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Buchanan held that lay evidence is potentially competent to support the presence of a disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records (STRs, etc.). The Veteran is competent to report the injury in service and that he has experienced consequent symptoms ever since, both while still in service and during the many years since his discharge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board therefore finds his statements both competent and credible and, thus, entitled to probative weight as his statements are internally consistent, as well as consistent with other evidence of record. Following this additional review of this claim, when considering the evidence for versus against this claim, at the very least it is in relative balance (equipoise) concerning whether the Veteran's current low back disability was incurred during his active military service from the injury alleged. And in this circumstance this reasonable doubt is resolved in his favor and his claim granted rather than denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Rather, this need only be an "as likely as not" proposition, which in this instance it is for the reasons and bases discussed. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Poindexter 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.