Citation Nr: 22046167 Decision Date: 08/15/22 Archive Date: 08/15/22 DOCKET NO. 18-23 133 DATE: August 15, 2022 ORDER Service connection for a low back disability is granted. FINDING OF FACT The Veteran began experiencing symptoms of low back disability in service and has continued to experience those symptoms since then. CONCLUSION OF LAW The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 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 June 1987 to July 1987 and from November 1990 to May 1991. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2016 rating decision. In June 2019, the Board denied the Veteran's claim for service connection for a low back disability. The Veteran subsequently appealed the Board denial to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the portion of the June 2019 Board decision that denied service connection for a low back disability and remanded the matter for further development and readjudication. In September 2020, the Board remanded this matter for further development consistent with the April 2020 JMPR. Service Connection Low Back Disability 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; 38 C.F.R. § 3.303(a). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, such as arthritis, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Veteran seeks service connection for low back disability. Specifically, he contends that he injured his back during basic training in 1987, when he fell in a cattle car. The Veteran maintains that he has continued to experience symptoms of this in-service low back injury since service. Private and VA treatment records show the Veteran has a current diagnosis of lumbago, degenerative disc disease, and intervertebral disc syndrome. However, his service treatment records are silent for any complaints of, treatment for, or diagnosis of any low back pain or disorders. The Veteran submitted written statements in March 2017, April 2017, and February 2018, wherein he reported that he injured his low back during the same incident that he injured his left leg. In the February 2018 written statement, the Veteran also stated that he reported his low back injury while being treated for his left leg injury in 1987 but was told by his treating physician that he likely pulled a muscle in his back. Of note, a June 1987 treatment note shows that he was treated for a left leg injury, which he reported sustaining from a fall in a cattle car. Additionally, VA treatment records show that during multiple visits, the Veteran reported that his low back disability onset in service and he has continued to experience low back pain since then. As noted above, the Veteran is competent to report on the onset and continuity of his symptomatology. Layno, 6 Vet. App. at 470. Moreover, statements made for the purpose of medical diagnosis or treatment are considered trustworthy, as the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346, 356 (1992). The evidence does not impeach the Veteran's credibility. Therefore, his competent lay statements are credible. Pursuant to the September 2020 Board remand, the Veteran underwent a VA examination for his low back disability in February 2022. The Veteran again reported he injured his back in service during the cattle car fall and has experienced low back pain since then. The examiner confirmed that the Veteran has a diagnosed low back disability but opined that it is less likely than not due to his active service. The examiner explained that medical records do not support a low back disability related to the alleged in-service injury because there is no evidence in the Veteran's service treatment records of a low back injury in service. While the Board cannot ignore or disregard the VA examiner's medical conclusions, the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, the Board finds that the February 2022 medical opinion is inadequate, as the examiner failed to address the Veteran's lay statements that his low back pain onset in service and has continued since. Additionally, the examiner's opinion is based solely on the lack of medical records of an in-service low back injury. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) (finding an examination inadequate where the examiner relied on lack of evidence in medical records and did not address veteran's lay statements); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (finding that lay evidence as to onset and continuity of symptoms, if credible, is ultimately competent regardless of the lack of contemporaneous medical evidence). Although the record does not contain adequate medical opinion addressing direct service connection, sufficient evidence exists to resolve this claim favorably without additional remand. Moreover, the Board emphasizes that VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, the Board finds the Veteran's competent and credible lay statements as to the onset and continuity of his low back symptomatology to be the probative evidence weighing in support of his claim. As such, the evidence demonstrates the Veteran began experiencing symptoms of his low back disability during service and has continued to experience those symptoms since then. Accordingly, service connection for low back disability is warranted. SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Benson, 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.