Citation Nr: 22019570 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 17-41 210 DATE: April 1, 2022 ORDER Entitlement to service connection for a low back disability is granted. Entitlement to service connection for a neck disability is granted. FINDINGS OF FACT 1. The Veteran's claimed low back disability was incurred due to service. 2. The Veteran's claimed neck disability was incurred due to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.159, 3.303. 2. The criteria for service connection for chronic a neck disability have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.159, 3.303.. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 2004 to January 2006, including service in Iraq from January to December 2005. This matter comes before the Board of Veterans' Appeals (Board) from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims of service connection for low back and cervical spine disabilities, which he filed on December 10, 2013. The Veteran testified at a hearing held before the undersigned Veterans Law Judge in May 2021. Service Connection The Veteran seeks service connection for low back and cervical spine disabilities on the basis that he has had recurrent back and neck problems since service. In support, he cites trauma sustained in an in-service motor vehicle accident. In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Active service includes periods of ACDUTRA when service connection may be granted for disabilities resulting from a disease or injury incurred in or aggravated while performing ACDUTRA. 38 U.S.C. § 101 (22), (24); 38 C.F.R. § 3.6 (a), (c). Active service also includes periods of INACDUTRA when service connection may be granted for disabilities resulting from an injury incurred in or aggravated while performing INACDUTRA. 38 U.S.C. § 101 (23), (24); 38 C.F.R. § 3.6 (a), (d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). 1. Entitlement to service connection for a low back disability The Veteran is seeking service connection for a low back disability which he contends began during service and has continued since that time. VA treatment records confirm that the Veteran presently receives treatment for low back pain. Accordingly, the Board finds that the Veteran has a present disability for service connection purposes. A review of the Veteran's service treatment records (STRs) reveal that the Veteran was injured in a motor vehicle accident (MVA) in 1985 while on ACDUTRA in the Louisiana National Guard. Additional STRs show that the Veteran sought treatment for complains of low back pain and a diagnosis of spondylosis of the lumbar spine while in service. Accordingly, the Board finds that the Veteran had a qualifying in-service injury. In the May 2021 Board hearing before the undersigned Veterans Law Judge, the Veteran testified that his symptoms of low back pain began after the aforementioned 1985 MVA and has been recurrent since that time. The Veteran also submitted lay statements from a fellow service member who witnessed the 1985 MVA and the Veteran's symptoms thereafter and a neighbor who testified as to the Veteran's current symptoms. The July 2021 lay statement from C.I., who witnessed the 1985 MVA, provided that the Veteran has been "unable to function properly due to injuries from MVA" and experiences constant back pain. The Board observes that the Veteran received a VA examination regarding his claimed low back pain in May 2012. The examiner, however, opined that the condition was less likely than not incurred in or caused by military service. By way of rationale, the examiner stated that "[t]he Veteran's claims that he had a lumbar injury in 1984 and had lower back pain while in Iraq are not substantiated in the service treatment records at all." The Board observes that the May 2012 examiner wholly failed to address entries in the Veteran's STRs wherein the Veteran sought treatment for low back pain and was placed on temporary profiles for spondylosis of the lumbar spine. Accordingly, the Board finds this examination to be inadequate for determining entitlement to service connection. Lay statements of record, however, affirm initial signs and symptoms of chronic back disability during service. The Veteran is competent to report a continuity of symptoms of low back disability in the years since service and his reports are consistent with the evidence of record. The Board finds that the reports of continuity of symptomatology in the years since service are credible. Thus, resolving reasonable doubt in favor of the Veteran, the Board concludes that his low back disability was incurred during active duty service. Accordingly, service connection for low back disability is granted. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. Entitlement to service connection for a neck disability The Veteran is also seeking service connection for a neck disability which he contends began during active duty service and has continued since that time. A review of VA treatment records confirms that the Veteran has a present diagnosis of cervicalgia with neck pain. As noted above, the Veteran sustained injuries in a 1985 MVA while on a period of ACDUTRA. STRs also reveal that the Veteran experienced a minimal offset at C5-6, and later diagnosed with degenerative disc disease of the cervical spine and herniated nucleus pulposus/bulging discs at C5-C6 and C7, which resulted in being placed on temporary profile from strenuous activity. In the May 2021 Board hearing before the undersigned VLJ, the Veteran testified that he has experienced consistent neck pain which began after the aforementioned 1985 MVA and has been recurrent since that time. The Veteran also submitted lay statements from a fellow service member who witnessed the 1985 MVA and the Veteran's symptoms thereafter and a neighbor who testified as to the Veteran's present day symptoms. The July 2021 lay statement from C.I., who witnessed the 1985 MVA, provided that the Veteran has been "unable to function properly due to injuries from MVA" and has complained of constant neck pain since that time. The Board observes that the Veteran has been found to be competent and credible with regards to reporting the onset and continuity of his symptomatology, and the medical evidence of record corroborates the Veteran's assertions of neck pain beginning and continuing since the in-service 1985 MVA. Thus, resolving reasonable doubt in favor of the Veteran, the Board concludes that his claimed neck disability was incurred during active duty service. Accordingly, service connection for a neck disability is granted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Gorum, 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.