Citation Nr: 22018045 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 19-36 451 DATE: March 28, 2022 ORDER Entitlement to service connection for a low back disability is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's current low back disability is causally related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1972 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a low back disability. In December 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that the Veteran's service treatment records (STRs) have not been obtained. VA undertook efforts to obtain the missing treatment records but was unsuccessful. See 38 C.F.R. § 3.159(c)(2). In February 2018 correspondence, VA notified the Veteran of efforts to obtain the missing treatment records and of its determination that the records were unavailable and further attempts to obtain them would be futile. 38 C.F.R. § 3.159(e). In these circumstances, the duty to assist does not require additional action on the part of VA. However, when a Veteran's STRs are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). Entitlement to service connection for a low back disability is granted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition, certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). The Veteran contends that his low back disability is related to his active duty. Specifically, he contends that he injured his back falling from telephone poles as a lineman. See December 2021 Transcript of Hearing, pages 2-3. As set forth above, the Veteran's STRs are unavailable. In February 2018 correspondence, a private practitioner noted a diagnosis of degenerative disc at [L]5-S1. The practitioner indicated that although it was not possible to tell when the Veteran's injury occurred, he opined that it would have occurred years ago due to the extent of the degeneration. See February 2018 correspondence from P.-K.C.C. The Veteran was afforded a VA examination in November 2019. The examiner noted diagnoses of chronic lumbar strain, degenerative joint disease, and degenerative disc disease. The Veteran reported falling from a telephone pole while in the field during active duty for which he saw a medic. The Veteran also reported that his back has hurt him "off and on" since separation. After examination of the Veteran and review of the claims file, the examiner rendered a negative etiological opinion regarding the Veteran's back. The examiner opined, After review of the available medical records, a diagnosis [of] degenerative joint disease of the lumbar spine is noted in the medical record, 12/29/2017. The Veteran reported no memory of a specific injury to his back while in service. Stated he fell from a pole working as a lineman but was able to continue in his duty station and responsibilities. His separation was in 1975, since that time he denies any circumstances which prevented him from working. Given the intervening years, lack of medical evidence of a sustain[ed] back injury and/or condition, his lumbar spine condition is more likely related to occupational duties and the normal aging process. At the December 2021 Board hearing, referenced above, the Veteran testified that he injured his back falling from telephone poles as a lineman during active duty. He testified that he experienced back pain the first time he fell off the pole and that he began experiencing more frequent back pain when he returned home from active duty, for which he began taking medication. The Veteran testified that his back pain has continued since that time. See December 2021 Transcript of Hearing, pages 2-4. After a review of the evidence, and affording the Veteran the benefit of the doubt, the Board finds that the evidence is in equipoise as to whether the Veteran's current low back disability is causally related to his active service. With regard to the first element of a service connection claim, the evidence shows that the Veteran has a current low back disability. The November 2019 VA examination noted diagnoses of chronic lumbar strain, degenerative joint disease, and degenerative disc disease. Similarly, the February 2018 medical opinion from a private practitioner noted a diagnosis of degenerative disc at [L]5-S1. In addressing the second element, the evidence shows that the Veteran has competently and credibly reported that he fell from telephone poles as a lineman during active duty and experienced low back pain as a result. The Veteran is competent to provide such assertions, as his experiences during the military are within the realm of first-hand knowledge. He is deemed credible because he has remained consistent in his assertions. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Affording the Veteran the benefit of the doubt, the Board finds that the evidence establishes that the Veteran incurred a low back injury during active duty. With respect to the third element, the nexus requirement, the Board finds that the evidence is in relative equipoise as to whether the Veteran's current low back disability is causally related to his active service. The Board finds the February 2018 nexus opinion from the private practitioner, although lacking extensive reasoning, when read as a whole and in the context of the evidence of record, is entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Additionally, the Board finds the Veteran's statements both competent and credible regarding falling from telephone poles as a lineman during active duty and his resultant low back pain which has continued since that time. The Board assigns less probative weight to the November 2019 VA examination, as the examiner failed to address the Veteran's statements indicating that he experienced back pain since active duty. The evidence is therefore at least evenly balanced as to whether the Veteran's low back disability is causally related to his active service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a low back disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.