Citation Nr: 1632685 Decision Date: 08/17/16 Archive Date: 08/24/16 DOCKET NO. 07-18 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a back disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Betty Lam, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1982 to November 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied the Veteran's claim of service connection for a back disability. Jurisdiction over the Veteran's claims file was subsequently transferred to the VA RO in Montgomery, Alabama. In July 2009, the Board remanded the claim to provide the Veteran with a personal hearing. In April 2010, the Veteran testified at a Travel Board hearing before the undersigned at the RO in Montgomery, Alabama. A transcript of the hearing is part of the record. In October 2010, September 2012, and July 2013, the Board remanded the claim for additional development. The claim has now returned to the Board for adjudication. The Veteran had previously been represented by a veterans service organization. In June 2016, the Veteran elected to proceed as an unrepresented claimant. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his back disability began during his active military service and has continued since that time. CONCLUSION OF LAW Service connection for a back disability is granted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2015). 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 for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a) (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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) (2015). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2015); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Alternatively, the nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection (here, the Veteran's back disability) manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service treatment records beginning in June 1985 show that the Veteran injured his back while falling down the steps. The Veteran complained of pain and stiffness since his injury. He was provided a diagnosis of mechanical low back pain. The Veteran separated from active service in November 1986 without a separation examination. At a January 2007 VA examination, the Veteran reported that he injured his back in service when he slipped down the steps and developed back pain. The Veteran reported that he was treated in service and following his release, he was seen in the Orthopedic Center in 1993 and 1995. The Veteran reported that he has had back pain since 1986. The VA examiner confirmed a diagnosis of degenerative disc disease of the lumbar spine. However, the VA examiner opined that the absence of documentation of treatment since discharge until 2005 prevented the examiner from determining the etiology of the back condition without resorting to mere speculation. A speculative opinion is not a sufficient basis upon which to grant a claim, and therefore the January 2007 opinion is inadequate. Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010). In June 2010, the Veteran submitted a receipt of medical prescription for Naproxen and Tylox for his back condition prescribed by Dr. J.E.R. in May 1995. The Veteran also submitted several buddy statements from his former spouse, friend, and family members who provided that the Veteran had a back injury in service and had continued to have back problems since service. At the November 2010 VA examination, the Veteran continued to report that his back pain began in service. The VA examiner confirmed the diagnosis of degenerative disc disease of the lumbar spine. However, regarding the Veteran's statement of continuity of symptomatology, the examiner found no objective evidence to support continuity and chronicity until many years after service. The VA examiner concluded that without objective evidence of continuity and chronicity of care, it is less likely as not that the Veteran's back disorder had its onset in service or is related to service. The November 2010 opinion is less probative because it relies on an absence of corroborating medical evidence. In a December 2011 lay statement, the Veteran reported that he injured his back in June 1985. The Veteran reported that he separated from service without an examination. The Veteran provided that he was examined and treated for back pain by Dr. J.E.R. in May 1995 and was prescribed Naproxen and Tylox. The Veteran also reported that he lost his job in November 1995 due to absences as a result of his back pain. The Veteran continued to be treated for back pain from 2005 to present and was diagnosed with degenerative disc disease. In December 2015, the Veteran submitted a private opinion from Dr. C.N.B. dated November 2015 that found the Veteran's current lumbar spine to be highly likely due to his trauma in service. The medical opinion relied on military treatment records which showed an onset and treatment for mechanical low back pain in service. Then, on every examination from service until present, the Veteran has complained of muscle pain and spasms related to his injury in service. In December 2015, the Veteran also submitted a buddy statement from his brother who reported that the Veteran has complained of back pain for 30 years. The lay evidence includes lay statements submitted by the Veteran, his former spouse, friend, and family members throughout the course of his appeal. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, the Board finds that the Veteran, his former spouse, and family members are competent to report his back complaints and symptoms because this requires only personal knowledge as it comes to them through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The claims file also contains lay evidence supporting both the onset of his disorder in service, as well as a continuity of symptomatology since the military discharge. The Board notes that the chronicity of in-service symptomatology may be established by lay evidence. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997). The Board finds the various lay statements of record to be credible and of high probative value as the Veteran, his former spouse, and family members are competent to report back problems that the Veteran experienced since service because they were readily observable to a lay person. Layno, 6 Vet. App. At 470. The lay evidence in this case is supported by the objective medical record. Here, the lay statements provided that the Veteran developed back pain as a result of an injury in service in June 1985. Service treatment records beginning in June 1985 provided that the Veteran slipped on steps and developed back pain and stiffness. The Veteran was diagnosed with mechanical low back pain. Although arthritis was not showing within one year in order for presumptive service connection to be granted, the proximity of the diagnosis to when the Veteran was released from service, combined with his testimony and lay statements, supports the Board's conclusion that his back disability began in service and has continued since that time. No post-service event, injury or disease between the Veteran's discharge in November 1986 and VA examination confirming a diagnosis of degenerative disc disease of the lumbar spine has been shown. In light of the above, when affording the Veteran the benefit-of-the-doubt, a finding of service connection is warranted. Given the granting of the benefit, any further development or notification action under the Veterans Claims Assistance Act of 2000 (VCAA) would not avail the Veteran. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014). ORDER Entitlement to service connection for a back disability is granted. ____________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs