Citation Nr: 1330231 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 13-09 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from March 1943 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the VA Regional Office (RO) in Des Moines, Iowa. The Board notes that the Veteran requested a videoconference hearing before a Veterans Law Judge, but withdrew his request for a hearing through written correspondence, dated in May 2013. The Veteran having withdrawn his hearing request, the Board will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (e) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran has osteoarthritis of the thoracic and lumbar spines that is as likely as not related to his active duty. CONCLUSION OF LAW The criteria for service connection for osteoarthritis of the thoracic and lumbar spines have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in this case, no discussion of compliance with VA's duty to notify and assist is necessary. The Veteran contends that he injured his back in service during a training incident. Specifically, he contends that while performing a "village fighting exercise," he was running and vaulted over a fence, hit a wall, then fell back and landed on the picket fence, injuring his spine. See, e.g., October 2010 statement. He also contends that he experienced back problems and strain in the normal course of events while stationed overseas. Id. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). However, claims for certain chronic diseases, including arthritis, listed in 38 C.F.R. § 3.309(a) benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases"). Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain in a claim for arthritis or abnormal heart action in a claim for heart disease) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Id. at 1338-1339. Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation" for chronic diseases. Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease"). A continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. at 1338. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran's service treatment records (STRs) show no treatment for a lumbar spine disorder, nor do they show treatment for injuries sustained in a training accident or treatment while stationed overseas. Indeed, the Veteran himself reported that he did not seek treatment in service. See October 2010 statement. The Veteran's statements throughout this appeal show that he reported having continuous back pain since service. Lay statements from his family support those assertions. In statements received in December 2010, the Veteran's wife reported that they were married in July 1946 and that she was aware of the Veteran having back problems early in their marriage; his children reported that the Veteran had experienced back problems for as long as they could remember. According to post-service medical records, a bone scan in December 2002 showed degenerative change in the lumbar spine. X-rays in April 2007 show that the Veteran had minor arthritic changes in the lower dorsal spine; scoliosis in the lumbar spine; degenerative grade I anterolisthesis at L5 on S1; advanced hypertrophic facet disease of the lower lumbar vertebrae at L3-4 to L5-S1; and advanced disc desiccation at L1-2, L5-S1 and L2-3. An August 2010 record shows that the Veteran had degenerative scoliosis and spinal stenosis. A letter from K.K., M.D. dated in June 2012 shows that the Veteran was diagnosed with osteoarthritis of the thoracic and lumbar spines. It was his opinion that the injuries he received while in the military may have contributed to that diagnosis. Based on a review of the evidence, the Board concludes that service connection for osteoarthritis of the thoracic and lumbar spines is warranted. When affording the Veteran the benefit-of-the-doubt, the evidence supports a finding of an in-service injury, a continuity of symptomatology and a current chronic disability. Although the Veteran's STRs do not show a back injury, the Veteran is competent to report his in-service injury. The Board also finds him credible. Throughout this appeal, the Veteran has been consistent with his reports. The evidence of record does not suggest that the Veteran is not credible in his report of what occurred in service. Therefore, the Board concludes that the Veteran had back problems in service. The evidence also shows that the Veteran has a current diagnosis of osteoarthritis of the thoracic and lumbar spines; X-rays support a finding of arthritic changes. Additionally, the evidence supports a finding that the Veteran's current arthritis is related to his military service. As noted above, arthritis is a chronic disability as per 38 C.F.R. § 3.309. In this case, the Veteran has competently and credibly reported having a continuity of symptomatology since service. His contentions are supported by those of his family members. The Board finds that his family is competent and credible to report noticing the Veteran having back problems. Additionally, the evidence does not show that the Veteran had any intercurrent injuries to his spine between service and his current diagnoses. Under Walker, a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation" for chronic diseases. Walker, at 1338; see also Id. at 1336. Therefore, in light of the Veteran having in-service back problems, a continuity of symptomatology since service, as well as having been diagnosed with a chronic disability as per 38 C.F.R. § 3.309, the Board concludes that service connection is warranted. Thus, after considering all of the evidence of record, the Board concludes that a finding of service connection is warranted. Service connection for osteoarthritis of the thoracic and lumbar spines is, therefore, granted. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to service connection for osteoarthritis of the thoracic and lumbar spines is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs