Citation Nr: 22014740 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 19-31 041 DATE: March 14, 2022 ORDER Entitlement to service connection for a back condition is granted. FINDING OF FACT The evidence of record is at least in approximate balance as to whether the Veteran's current back condition arose during or as a result of his active service, including his reported in-service motor-vehicle collision. CONCLUSION OF LAW The criteria for entitlement to service connection for a back condition have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1987 to March 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision of a VA Regional Office (RO). The Veteran testified at an October 2020 hearing before the Board of Veterans' Appeals (Board). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1131, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the 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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran's service treatment records (STRs) have been determined to be unavailable. See May 2017 VA memorandum; September 2019 Statement of the Case (SOC). The Board will apply the holding in O'Hare, where, as in this case "most" of the Veteran's medical records are missing, the Board has an "obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened." O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). During the Veteran's September 2017 VA examination for Gulf War conditions, the VA examiner opined that his back pain symptoms were related to his diagnosed osteoarthritis and degenerative joint disease, conditions with a known etiology, and they were not due to an undiagnosed illness or diagnosed medically unexplained chronic multi-symptom illness. In an April 2018 physician's statement, a private physician opined that he had treated the Veteran since February 2018, and, in his opinion, the Veteran's back condition was at least as likely as not due to his in-service motor-vehicle collision. The physician stated that they had reviewed the Veteran's medical history, personally examined him on two occasions, and reviewed his radiographic reports. They noted he was positive for cervical and thoracic spondylosis and had no known risk factors for the conditions other than the in-service incident. In a December 2018 Notice of Disagreement (NOD), the Veteran asserted that his back condition was due to a motor-vehicle collision that occurred during service. He attached insurance documentation that reflected that the incident occurred in April 1994. He stated that the owner of the vehicle was listed on the documentation, but he was the person driving it at the time of the collision. At the October 2020 Board hearing, the Veteran testified under oath that he experienced a motor-vehicle collision during service, and his back was injured. He stated that initially his back was very sore, so he took painkillers, was placed on light duty, and he took time off work. He did not realize the severity of his injury until time had passed. In the early 2000s, he went to a chiropractor for his back pain, and the chiropractor commented on the severity of his condition. Based on his medical history, the only known risk factor was this motor-vehicle collision. The Board finds the evidence of record is at least in approximate balance as to whether the Veteran's current back condition arose during or as a result of his active service. The Board notes that the Veteran's STRs are not available, and the only VA medical opinion exclusively addresses whether his back disability is related to his service in Southwest Asia during the Gulf War. Conversely, the private medical opinion supports the Veteran's claim, and the physician based his opinion on treatment and examination of the Veteran, his medical history, and related radiographic reports. This opinion is consistent with the Veteran's lay statements and Board hearing testimony, which was offered under oath. Based on these facts, the Board finds that the evidence of record is at least in approximate balance; therefore, the benefit of the doubt will be afforded to the Veteran. 38 U.S.C. § 5107(b). Accordingly, the claim is granted. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.