Citation Nr: 22014368 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-37 134 DATE: March 12, 2022 ORDER Entitlement to service connection for a back condition, to include degenerative arthritis, is granted. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his low back disability, to include degenerative arthritis, is at least as likely as not related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back condition have been met. 38 U.S.C. §§ 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Army from June 2005 to June 2010. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2016, and November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in February 2020 for development. After a Supplemental Statement of the Case (SSOC), the claims are back before the Board. Service Connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specified chronic diseases when shown in service with subsequent manifestations at a later date, however remote, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.307. Some chronic diseases are subject to presumptive service connection, although, not otherwise established as incurred or aggravated by service if manifest to a compensable degree, within an applicable time limit, provided that the rebuttable presumptive provisions of § 3.307 are also satisfied. See also 38 C.F.R. §§ 3.303, 3.309. Alternatively, to show a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Entitlement to service connection for a back condition is granted. The Veteran contends that he is entitled to service connection for a back disability, that began during service, and has continued since service. He contends that the VA examiner's opinion that back arthritis is a normal age-related condition should not really hold as true, because he is very young to have arthritis. The Veteran reported that he injured his back in service. He explained that he complained about back pain in service. He was in Iraq wearing 50 pounds of gear daily for at least two years. See Correspondence received January 2022, see also NOD received March 2017. He stated that he complained of back pain more often than his records show, and he believed it was due to poor record keeping while he was deployed. See NOD received March 2017. The Veteran has had treatment for low back pain. He also has imaging showing early degenerative arthritis in his lumbar spine. See Medical Treatment Record - Government Facility received February 2020. Therefore, the Board concludes that the Veteran has a current disability. The evidence also supports a finding of in-service injury to the back. The Report of Medical Assessment dated in February 2010 stated that the Veteran reported worsening back problems. See STR received October 2016. His service treatment records also noted in the problems list "midback pain" in several places. Id. While the Board was not able to find imaging from in service, the Veteran must have complained about back pain, for back pain to be listed in the problems list during service. The Veteran's military records also documented that he had four years of foreign service. He was awarded the Iraq campaign medal with three campaign stars among other commendations. See Certificate of Release or Discharge from Active Duty (DD 214) received June 2016. The Veteran competently, credibly, and consistently stated that as a result of his duties he injured his back during service. The Board finds that the Veteran's statements are credible, as they are consistent with the verified circumstances of his service. 38 U.S.C. § 1154(a). Therefore, an in-service event is clearly supported by the Veteran's service records. Lastly, the Board finds that the Veteran competently and credibly reported chronic, continuous low back pain since service. The nature, onset, and course of his low back pain are capable of being identified by the Veteran as a lay witness. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For example, in March 2016 the Veteran had treatment at a private medical clinic. He reported lower back pain which started in 2007. He explained that he has had pain in his lower back with exacerbations every three to four months. He reported wearing a back brace occasionally and not being able to lift more than 50 pounds without worsening pain. See Medical Treatment Record-Non-Government Facility received June 2016. Then in September 2016, the Veteran had a VA back examination. Again, he reported that he had lower back pain since around 2007. See C&P Exam received in September 2016. Moreover, on review of all the records in the file, the Board noted that the Veteran first filed for back pain under the pre-separation program, in March 2010. See VA 21-526 Veterans Application for Compensation or Pension received March 2010, see also Rating Decision-Narrative dated August 2010. While the Veteran did not pursue the claim for back pain at the time he was separating from service, his complaints and application at that time further supported his lay statements of ongoing back pain since service. The Veteran is competent to report symptoms like pain. See 38 C.F.R. § 3.159(a)(2); and see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board recognizes the November 2016 VA examiner's opinion finding that it was less likely than not that the Veteran's back disability was caused by the claimed in service injury, event, or illness. The Board affords this conclusory negative nexus opinion minimal probative value. In particular, the opinion inadequately considered the Veteran's competent and credible lay statements describing chronic, continuous symptoms since service. Additionally, the examiner stated that the Veteran had no in-service treatment for back pain. The examiner's statement that the Veteran had no treatment for back pain in service is inconsistent with the Veteran's service records which noted back pain in the problems list, and with the Veteran statements that he received treatment while deployed that was likely not properly documented. However, the Board does not need to reach the weight assignable to any medical opinion because service connection may be granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the "chronic" disease of arthritis based on a finding of a continuity of low back pain symptoms since service. In sum, the evidence of record supported that the Veteran's back disability occurred in active duty service. The record also supported that the Veteran has had back pain ongoing since service. Accordingly, the Veteran's claim for service connection for a back disability is granted. REASONS FOR REMAND Entitlement to service connection for OSA is remanded. Although further delay is regrettable, a remand is necessary for the following development. The VA has a duty to assist the Veteran in obtaining records. In particular, the VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. See 38 C.F.R. § 3.159(c)(2). Additionally, the VA should attempt to obtain any relevant private treatment records to fulfill its duty to assist the Veteran. In this claim, it appears that no VA treatment records have been obtained since early 2020. Additionally, the Veteran's VA treatment records documented that the Veteran had treatment with a private clinic. The record holds only one visit from the clinic. See Medical Treatment Record-Non-Government Facility received June 2016. However, the Veteran reported that he was seen as needed at the clinic. See Medical Treatment Record-Government Facility received February 2020. While there have been some general attempts to obtain private treatment records, it does not appear that the RO specifically tried to obtain the Veteran's care from a clinic before he began care at the VA. The Veteran is reminded that while the VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Therefore, the Board remands the claim to obtain VA and private treatment records. The matters are REMANDED for the following action: 1. Update all VA medical treatment records. 2. Request the Veteran to provide authorization for release of all relevant private medical records to VA. In particular, he reported private treatment at a clinic. See Medical Treatment Record-Non-Government Facility received June 2016. He also had at least some private treatment for his sleep apnea. Id. If any records identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such records. The Veteran may also provide any relevant records that may be in his possession. 3. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a SSOC and afforded the requisite opportunity to respond before the case is returned to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.