Citation Nr: 1754494 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-04 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for a left-sided varicocele. 2. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2008 to May 2012. This matter comes before the Board of Veterans' Appeals (Board) from a July 2012 RO decision. The Veteran presented sworn testimony in support of his appeal before the undersigned Veterans Law Judge during a videoconference hearing in June 2017. A transcript of that proceeding is associated with the claims file. FINDINGS OF FACT 1. On the record during a June 2017 Board hearing, prior to the promulgation of a decision in this appeal, the Veteran expressly stated that he wished to withdraw his appeal as to the issue of entitlement to an initial compensable rating for a left-sided varicocele. 2. 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. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the appealed issue of entitlement to an initial compensable rating for a left-sided varicocele have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Issue The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (West 2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, in June 2017 Board hearing testimony, the Veteran withdrew the appealed issue of entitlement to an initial compensable rating for a left-sided varicocele. Thus, there remain no allegations of errors of fact or law for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review that issue, and it is dismissed. II. Service Connection for a Low Back Disability The Veteran contends that his current low back disability began during and is related to active duty service, including documented reports of and treatment for low back symptoms during service. Specifically, he primarily contends that he has experienced low back pain since an incident involving lifting heavy objects 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. §§ 1101, 1112, 1113, 1137 (West 2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). 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 has a current lumbar spine diagnosis of mild degenerative changes. See February 2015 private lumbar spine imaging report. This diagnosis refers 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 references to low back pain complaints and treatment, including at the time of separation. See December 2008 sea duty report of medical history (noting Veteran's affirmative response to inquiry regarding recurrent back pain); September 2009 treatment note (referencing complaints of back pain and history of heavy lifting recently; noting diagnosis of mechanical low back pain vs. muscle strain); March 2012 separation report of medical history (noting Veteran's affirmative response to inquiry regarding recurrent back pain, and the military examiner's remarks regarding reports of low back pain on and off for the past 2.5 years). The Board finds the Veteran's consistent reports of low back pain during and since service to both VA adjudicators and various medical providers both competent and credible. The Veteran filed the present service connection claim on appeal for low back pain and spasms as a pre-discharge claim in May 2012. Since very soon after separation, he regularly has reported and sought private and VA treatment for low back symptoms, which he consistently has attributed to service. See, e.g., May 2012 VA back examination report (referencing Veteran's report of back pain beginning in April 2009 when he lifted heavy objects); February 2014 VA primary care note (referencing report of chronic back pain since in-service lifting incident); August 2014 letter from private massage therapist (noting Veteran had been a patient for more than two years -i.e., since soon after his 2012 separation - and that he attributed his back issues to an in-service incident); June 2017 VA primary care note (referencing report of back pain since 2009 in-service injury). The Veteran's consistent reports of his medical history corroborate his credible June 2017 Board hearing testimony that he has had low back pain since a 2009 lifting incident during service, and that he has undergone low back treatment since very soon after separation. This is not a situation where after service a claimant began alleging back pain during service, but one where his complaints about in-service symptoms are corroborated by the contemporaneous service records. The fact that he filed his claim with VA at the time of his discharge from service clearly shows that his back pain had not resolved and he believed he had a chronic condition due to service. The Board considered the May 2012 VA examiner's diagnosis of lumbar strain, resolved. However, since then, the Veteran has been diagnosed with mild degenerative changes of the lumbar spine, warranting service connection under continuity of symptomatology principles for chronic conditions such as arthritis. See February 2015 private lumbar spine imaging report. In summary, the Board finds that the Veteran's consistent assertions of continuity of low back symptomatology since 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. He consistently and credibly report back pain both during and in the years immediately following, until an MRI was done and a diagnosis provided. ORDER The appealed issue of entitlement to an initial compensable rating for a left-sided varicocele is dismissed. 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