Citation Nr: 22045366 Decision Date: 08/10/22 Archive Date: 08/10/22 DOCKET NO. 16-31 605 DATE: August 10, 2022 ORDER The claim of entitlement to service connection for a back disability is granted. FINDING OF FACT The Veteran experienced symptoms of pain related to a back disability since his separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 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 duty service in the United States Army from November 1961 to October 1966. The Veteran passed away in February 2019. The Appellant in this matter is the Veteran's surviving spouse, who has been properly substituted into the appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Board denied service connection for a back injury. Thereafter, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court granted the Appellant's and the Secretary of VA's Joint Motion for Remand, which vacated and remanded the Board's June 2018 decision. In November 2019, May 2020, July 2021, and February 2022, the Board remanded the appeal for additional development, including to obtain outstanding medical treatment records and obtain an adequate medical examination opinion. The Board concludes that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.902(c). The claim of entitlement to service connection for a back disability. In support of his claim, the Veteran contended that he injured his back during service. He contended that the majority of his duties as a mechanic involved dragging and maneuvering heavy cables on an M-88 tank retriever and manually moving towbars for large vehicles. See January 2015 Claim Application; July 2015 Correspondence. 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). Certain chronic diseases will be presumed related to service if they were shown as chronic 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); 38 C.F.R. §§ 3.303, 3.307, 3.309. 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). The benefit-of-the-doubt rule applies if the competing evidence is "nearly equal" or in "approximate balance." The benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). In this case, during his life, the Veteran was diagnosed with chronic back pain associated with multilevel advanced degenerative disc changes with facet osteoarthritis and multilevel lumbar degenerative spondylosis, among other conditions. See, e.g., June 2010 Moses Lake consultation note; October 2015 VA back consultation note. As such, the first element of service connection is met. Further, arthritis-related conditions are included among the diseases entitled to presumptive service connection under 38 C.F.R. § 3.309(a). Walker, 708 F.3d 1331. Next, the Board acknowledges that the Veteran's service treatment records (STRs) do not include complaint of or treatment for back pain or injury during service, and the Veteran did not report back pain at separation from service. However, upon sympathetic consideration of the full evidence of record, the Board concludes that the Veteran experienced back pain and injury during his active duty. The Board finds probative the Veteran's lay statements that he attempted to seek medical treatment during active service because his back was causing him "horrible pain." According to the Veteran, after asking his motor sergeant multiple times to be sent to the medic, he was essentially told he was being weak and needed to "suck it up." See July 2015 lay statement. The Veteran's lay reports indicate that he continued to experience pain during active service, which made his work more difficult, but that he carried on with his duties. Additionally, according to an October 2021 VA examiner, "it is likely that [the Veteran] strained his back during service per history of duties dealing with heavy equipment." Resolving all reasonable doubt in the Veteran's favor on this element, the Board finds he experienced in-service back strain and continued pain during service. Finally, the Board concludes that the Veteran continued to experience the same (and worsening) symptoms of back pain from the time of his discharge from active service to the time of his death in February 2019. Following the Board's 2018 denial of this appeal, numerous additional treatment records were added to the claims file. The Board notes that despite this development, the claims file still does not contain treatment records during the applicable presumptive period from immediately after the Veteran's service until approximately 2003; however, the Veteran's lay statements to his medical providers are competent and credible evidence that he experienced ongoing symptoms of back pain since his active service. See January 2016 Kooetani Medical Center Note (indicating Veteran's report of onset of back pain "was in 1963-1964 when he was in the military."). Additionally, the mere lack of medical treatment records does not prove that the Veteran did not experience chronic pain or seek treatment in the intervening years. For example, one September 2003 private treatment note shows that the Veteran already had, at that time, degenerative changes at multiple levels of his spine with foraminal encroachment. The Veteran and the Appellant both reported that the Veteran sought treatment from chiropractors and utilized pain medication daily to manage his symptoms in the years after his discharge, and the Veteran's July 2015 Correspondence also indicates that he had only recently to that time learned that he might be eligible for VA disability benefits for his back injury. A December 2006 VA treatment record, created nearly a decade before the Veteran filed for service connection, shows that he had "chronic low back pain" for "20+" years. To the Board, in light of the evidence of record and Veteran's credible lay statements, this indicates the Veteran experienced chronic and enduring back symptoms before the available medical records commence. The Board acknowledges that multiple VA examiners have identified no nexus between the Veteran's service and his back disability, and this evidence does weigh against the claim. However, the examiners have largely continued to rely on the lack of available medical treatment records during and immediately following service to conclude that the Veteran's spine conditions were unrelated to his service. On most recent remand, a March 2022 examiner concluded that it was "medically implausible that the [V]eteran could have endured a significant back condition for greater than 30+ years without seeking care, given the nature of such conditions." As noted above, the Veteran's lay statements and consistent reports to medical providers indicate that he experienced chronic symptoms of pain, which he self-medicated or treated with chiropractic care in the years immediately following his service. Further, the examiner's opinion does not address the Veteran's report that he attempted to seek treatment during service. As such, the Board finds this medical opinion entitled to slightly reduced probative value. (Continued on the next page) In resolving all reasonable doubt in his favor, the Board finds the Veteran has experienced ongoing symptoms related to his lumbar spine since his active service, and that his claim meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). Accordingly, the Board finds that service connection is warranted for a back condition (claimed as back injury). 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board notes that it will not address the ultimate weight assignable to the VA examination opinions of record as service connection may be granted on a presumptive basis on a finding of continuous symptoms since service rather than on direct service connection. Because the Board is granting service connection on a presumptive basis, all other service connection theories are rendered moot. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.