Citation Nr: 1751084 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-25 013A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1996 to August 2000. This matter comes before the Board of Veterans' Appeals (Board) from an April 2011 RO decision. The Veteran presented sworn testimony in support of his appeal before the undersigned Veterans Law Judge during a videoconference hearing in February 2015. A transcript of that proceeding is associated with the claims file. In May 2016, the Board reopened the issue of entitlement to service connection for a low back disability and remanded that issue to the RO for additional development. It has now returned to the Board for appellate review. Pursuant to the remand, the RO obtained the necessary releases and requested the Veteran's outstanding private treatment records. However, he submitted all outstanding private treatment records himself and asserted that there were no more records that the RO needed to request. See July 2016 correspondence; August 2016 Report of Contact. Moreover, the RO obtained the requested VA examination and medical opinion. Thus, the RO substantially complied with the Board's remand instructions and an additional remand to comply with the Board's directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the evidence is at least in equipoise as to whether he has had continuity of low back symptomatology since service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have been met. 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 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his current low back disability began during and is related to active duty service, including various documented reports of and treatment for low back symptoms during service. Specifically, he primarily contends that he has experienced low back pain since carrying a heavy ruck sack while marching during service. 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). In addition, certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2016). Moreover, certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if they are established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board."). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a), such as arthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise as to whether he has experienced continuity of low back symptomatology since service. Initially, the Veteran's current low back diagnoses include mild facet degenerative changes (June 2010 private imaging report) and lumbar spine facet arthropathy (December 2010 VA examination report). These diagnoses refer to osteoarthritis of the spine. See https://www.mayoclinic.org/diseases-conditions/osteoarthritis/ expert-answers/arthritis/faq-20058457. Accordingly, the Board finds that the chronic disease provisions apply. See 38 C.F.R. § 3.309(a); Walker, supra. The Veteran's service treatment records include multiple references to recurrent low back pain complaints and treatment, including soon before separation. See, e.g., April 2000 note (referencing complaints of recurrent low back pain for approximately one year, including recent complaints of low back pain since a road march in which the Veteran had carried a 40-pound ruck pack one week prior); June 2000 primary care clinic note (noting reports of low back pain since a road march a few days prior). The Board finds the Veteran's consistent reports of low back pain since service to both VA adjudicators and various medical providers both competent and credible. In May 2002, less than two years after service separation, the Veteran filed his original service connection claim for a back condition, in which he credibly claimed that he had experienced low back pain since a ruck march during service. In a July 2006 statement and petition to reopen, he reiterated the same contentions. Although the first documented reports of low back pain after service to medical providers were shown in 2007 private treatment records, the Veteran consistently, competently, and credibly asserted low back pain since service during the relatively brief interim period through his 2002 and 2006 representations to VA. The Veteran consistently and credibly has explained that the approximately seven-year gap between service separation and post-service low back treatment was due to his lack of medical insurance and his ability to tolerate the pain then, as opposed to a lack of low back symptoms. See March 2010 correspondence; June 2010 private pain management treatment record (history); December 2010 VA examination report; February 2015 hearing transcript. Since he began post-service low back treatment around 2007, he consistently and credibly has reported low back symptoms since service to various private medical providers. See, e.g. June 2010 private pain management note; February 2011 private treatment record (history). He also consistently has reported and sought treatment for low back symptoms with various private treating providers since he credibly asserted that he first obtained medical insurance around 2006 or 2007, when he began state government employment. The Board considered the December 2010 VA examiner's negative nexus opinion. However, as discussed in the Board's May 2016 remand, the Board finds that the examiner's rationale was inadequate. The examiner reasoned that there are no medical records showing continuity of symptomatology after service. In doing so, the examiner discounted the Veteran's credible lay statements that he has experienced back pain since service, and the fact that he filed claims for the same disability twice during the intervening years. Especially in light of the Veteran's credible explanation that he did not seek medical treatment during that interim period because he did not have medical insurance, the absence of treatment records during that period alone does not confirm the lack of low back symptomatology. Furthermore, the examiner reasoned that the Veteran had a physically demanding job as a corrections officer, and concluded that "his back condition...may be related to this (emphasis added)." However, the Board rejects that finding as speculative because it is completely unsupported by any post-service medical treatment records, which in fact do not suggest any intervening, post-service, work-related injury. Indeed, there is no indication in the record of any intervening causes since service that contributed to his current low back disability. The Board also recognizes the August 2016 VA examiner's negative nexus opinion. The 2016 VA examiner gave more weight to the facts that the Veteran was not medically discharged from service and that he was currently employed as a state corrections officer than to the Veteran's lay reports of low back symptoms since service. However, the legal criteria for entitlement to service connection based upon continuity of symptomatology or otherwise do not require the Veteran to have been medically discharged from service. Moreover, the Board rejects the examiner's implicit suggestion that the Veteran's current back condition may be related to his current work as a corrections officer for the same reasons discussed above regarding the December 2010 VA negative opinion. In summary, the Board finds that both the 2010 and 2016 VA examiners failed to give appropriate weight to the Veteran's multiple, credible reports of low back symptoms during service (including very soon before separation), as well as his credible reports of low back pain since service (including soon after service through the filing of his May 2002 and July 2006 claims). There is absolutely no documentation of a post-service back injury. In summary, the Board finds the Veteran's consistent assertions of continuity of low back symptomatology service are competent, credible, and probative. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for presumptive service connection for a low back disability under 38 C.F.R. § 3.303(b) have been met. ORDER Entitlement to service connection for a low back disability is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs