Citation Nr: 1522658 Decision Date: 05/28/15 Archive Date: 06/11/15 DOCKET NO. 09-29 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Nadia Kamal, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1983 to February 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota that denied service connection for a lumbar spine disability. In a January 2015 Joint Motion for Remand (JMR), the parties moved the Court of Appeals for Veterans Claims (Court) for a remand of the Board's January 2014 decision denying entitlement to service connection for a low back disability. The Court subsequently issued an Order remanding the issue to the Board for several considerations. FINDING OF FACT A lumbar spine disability is etiologically related to the Veteran's active service. CONCLUSION OF LAW A lumbar spine disability was incurred in or aggravated by active service. 38 U.S.C.A. §§1101, 1110, 1131 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran reports in a February 2008 claim that he has had "chronic" symptoms of back pain in service and continuous recurrent back pain symptoms since service. The Veteran has asserted that he hurt his back during the course of a performance test in active duty when he was pushed to the ground. He also asserts that he hurt his back while playing basketball when someone landed on his back. He could not remember the time or date of these incidents, but he nevertheless reports having experienced back pain since the injury in service, and he therefore believes that service connection for a back disability is warranted. See the Veteran's February 2008 statement and the April 2009 notice of disagreement. Having reviewed the evidence in its entirety, and after resolving all reasonable doubt in the Veteran's favor, the Board concurs that service connection for a lumbar spine disability is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). As the condition at issue, arthritis, is a "chronic disease" listed under 38 C.F.R. § 3.309(a) , 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease, subsequent manifestations of the same chronic disease at any later date, however remote, are considered to be service connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for certain chronic diseases such as arthritis if it manifests to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Here, there is competent and credible evidence that the Veteran has degenerative disc disease, which was diagnosed in May 2008 after he had an X-ray of his lumbar spine due to reports of pain. The Board finds that the Veteran's lay statements are sufficient to establish that he sustained a back injury in service and he that he experienced chronic and/or recurrent symptoms of back pain after the injury in service. Although the service treatment records (STRs) are silent for the Veteran's claimed performance test and basketball back injuries, his STRs do reflect two complaints of low back pain in 1992, specifically in May and September. The records indicate that when the Veteran reported experiencing low back pain in May 1992 after loading furniture at an air force base in Minot, ND, when he felt a strain in his low back. The Veteran is competent to provide lay testimony as to the onset of his observable back symptoms such as pain and report first hand events such as an injury. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see 38 C.F.R. § 3.159(a)(2). Here, the Board finds no reason to doubt the credibility of the Veteran's statements as to his back injury and chronic and continuous symptoms of back pain. Moreover, the Veteran's testimony is consistent with his circumstances of service. With regard to whether his back pain has continued since service, the Veteran asserted that since service he has continuously experienced back pain, but he had mistakenly been reporting it as cervical spine pain. In his February 1995 claim for entitlement to service connection for his neck, the Veteran attached a list of disabilities for which he had received treatment during service. Among those listed disabilities was his back, with treatment afforded in 1986 while the Veteran was still in-service. Furthermore, in an April 2008 VA examination for his cervical spine, the Veteran reported that he thought the term "spine" referred to his entire back; he was unclear that cervical spine only referred to his neck. Thus, when service connection was granted for his cervical spine, the Veteran believed that service connection grant had encompassed his lower back. In a July 2008 statement, the Veteran reiterated his confusion by stating that until 2008 he was under the impression that his rating for his cervical spine covered both his neck and back disabilities. When he discovered that his cervical spine rating only related to his neck disability, he filed separately for entitlement to service connection for his back. The Board finds that, as the Veteran has consistently indicated his confusion between the cervical spine and lumbar spine disabilities, his assertions that he has experienced back pain since service are credible and serve as evidence of a continuity of symptomatology and chronicity of a back disability. With regard to medical evidence which indicates a continuity of back pain since service, the Board turns to an April 2009 statement from the Veteran's chiropractor, Dr. William Beschnett. In that statement, Dr. Beschnett indicated that he has provided care for the Veteran on an intermittent basis for degenerative joint and degenerative disc disease in his low back since 1992. Dr. Beschnett further indicated that the Veteran had experienced chronic daily back pain with acute exacerbation. The Board finds that the Veteran experienced symptoms of back pain during service and has experienced chronicity of that pain since service so as to warrant presumptive service connection for a lumbar spine disability under the provisions of 38 C.F.R. § 3.303(b). Continuity of symptomatology is, therefore, established. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection have been met and service connection for a lumbar spine disability is granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER Service connection for a lumbar spine disability is granted. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs