Citation Nr: 1753495	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  10-19 789	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a low back disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel


INTRODUCTION

The Veteran had active service in the U.S. Army from November 1977 to March 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which declined to reopen a previously denied claim for service connection for a low back disability.

The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in June 2012.  A copy of the hearing transcript is of record.  In January 2014, the Board reopened the Veteran's claim for service connection for a low back disability and remanded it for additional development.  The matter was again remanded for development in February 2017.


FINDING OF FACT

Degenerative disc disease (DDD) and arthritis of the lumbosacral spine is etiologically related to service.


CONCLUSION OF LAW

The criteria for service connection for DDD and arthritis of the lumbosacral spine have been met.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131.  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2017).

With respect to element (1) of service connection, a current disability, a March 2017 VA examination diagnosed DDD and degenerative arthritis of the lumbar spine.  Therefore, element (1) has been met.

With respect to element (2), an in-service incurrence, service treatment records include multiple entries pertaining to the low back.  In July 1979 and June 1981, the Veteran complained of ongoing back pain.  She was diagnosed with muscle strain and spasms in June 1981.  She was again diagnosed with strain in February 1985.  From April 1985 through January 1988, she was seen an additional six times for back pain.  These findings satisfy element (2).

With respect to element (3), a link between the current condition and service, the Board notes that competent medical evidence is generally required to establish such a link.  However, for chronic diseases defined as such under VA law, including arthritis, the evidentiary requirements for establishing entitlement to service connection benefits are more relaxed.  Walker v. Shinseki, 708 F.3d 1331, 1338   (Fed. Cir. 2012).  Specifically, a continuity of symptoms after service must be shown, which is a distinct and lesser evidentiary burden than the nexus element of the above three-part test.  38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338.  Showing 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 a] presumptive period."  Walker, 708 F.3d at 1338-39.

In this case, following an examination of the Veteran, a VA examiner opined in March 2017 that the Veteran's condition was less likely than not related to service.  He stated that while the Veteran was treated for low back pain in service, x-rays were normal, and there was no medical documentation of chronic or recurrent back problems until an April 2010 motor vehicle accident.  He noted that x-rays from 1989 and 2006 were also normal.

The VA examiner's characterization of the evidence is not entirely accurate.  Specifically, he stated that there was no medical documentation of chronic or recurrent back problems prior to April 2010.  However, the Veteran filed a service connection claim for a back condition upon leaving military service in March 1988, indicating that she had symptoms at that time.  Lay statements dated June 2012 from fellow servicewomen and her daughter support the Veteran's contention that she had experienced back pain since service.  VA treatment records show reports of back pain in August 2000, September 2002, November 2002, October 2004, January 2006, August 2006, April 2007, February 2008, and so forth, all prior to her April 2010 motor vehicle accident.  Collectively, this evidence establishes a credible continuity of low back symptoms since service and satisfy element (3) of service connection for lumbar spine DDD and arthritis.  Therefore, service connection is warranted in this case.


ORDER

Service connection for degenerative disc disease and arthritis of the lumbar spine is granted.



____________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs