Citation Nr: 22013609 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 19-33 930 DATE: March 10, 2022 ORDER Entitlement to service connection for a back disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his back disability is at least as likely as not related to the in-service injury. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability 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 periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the United States Marine Corps Reserves. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Certain evidentiary presumptions - such as the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. §§ 101, 1112; 38 C.F.R. § 3.304 (b), 3.306, 3.307, 3.309. Reserve and National Guard service generally means active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA). ACDUTRA is full-time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). The term active military service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6 (a). The presumption of service connection outlined in 38 C.F.R. § 3.307 and § 3.309 only applies to periods of active duty and not to the veteran's ACDUTRA or INACDUTRA with the Army National Guard because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. With regard to a claimant whose claim is based solely on a period of ACDUTRA or INACDUTRA, however, there must be some evidence that the condition was incurred or aggravated during the relevant period of service. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Entitlement to service connection for a back disability The Veteran seeks service connection for a back disability that he contends is due to an injury that occurred during a period of ACDUTRA service. The Veteran has been diagnosed with back pain, mild multilevel lumbar spine degenerative change, disc herniation of the L5-S1, and radiculopathy of the lumbar region. See September 2019 VA Examination and August 2018 Private Treatment Record. Treatment records from a Navy doctor show the Veteran complaining of lower back pain that occurred during weekend training. See June 2012 Treatment Record. He reported feeling a sharp and shooting after lifting a tent overhead to place in a military vehicle. The date of the treatment record is June 15, 2012. The Veteran testified at the Board hearing that the date of his back injury was June 15, 2012. This date is significant because according to documents in the Veteran's file, he was on ACDUTRA from June 12, 2012, to June 15, 2012. See Discharge/Retirement or ETS Document. In September 2019 the Veteran underwent a VA examination. The VA examiner opined it was less likely than not that the Veteran's back disability was incurred in or due to service. The VA examiner's rationale indicated that he replied upon there only being one report of back pain in service from 2011 to form his opinion that there could not be a chronic back condition related to service. The Board finds the opinion of the September 2019 VA examiner is of limited probative value as it is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). As previously stated, treatment records from June 2012 note the Veteran reporting the back injury following trying to lift a tent into a vehicle. Instead, the Board finds the Veteran's lay statements to be more credible and probative. The Veteran is competent to report the occurrence of lay-observable events such as symptoms or certain readily observable disabilities. 38 U.S.C. § 1153(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has been consistent that he injured his back during ACDUTRA and that the pain has continued since service. Private treatment records confirm the Veteran sought treatment for his back shortly after service and that continues to seek treatment for his back. Therefore, based on the evidence of record, the Board finds entitlement to service connection for a back disability is warranted. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Boyd, Associate 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.