Citation Nr: 1802148 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-31 131A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for degenerative joint disease of the lumbosacral spine (hereinafter "back disability"). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from December 1985 to November 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the RO in Waco, Texas, which denied service connection for a back disability. In September 2017, the Veteran testified at a Board Videoconference hearing in El Paso, Texas, before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. FINDINGS OF FACT 1. The Veteran has a current back disability of degenerative joint disease (DJD). 2. The Veteran sustained a back injury during active service. 3. Symptoms of the current DJD have been continuous since service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a back disability of DJD have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.326(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159. The Board is granting service connection for back disability of DJD, constituting a full grant of the benefits sought on appeal. As there remains no aspect of the claim to be further substantiated, there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. Service Connection for Back Disability Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 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); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, degenerative joint disease, a form of arthritis, qualifies as a "chronic disease" under 38 C.F.R. § 3.309(a) (2017); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For a chronic disease such as arthritis, service connection may be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The presumptive service connection provisions based on "chronic" in-service symptoms and "continuity of symptomatology" after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). Service connection may also be established with certain chronic diseases such as arthritis based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. As the Board is granting presumptive service connection for arthritis of the back based on continuity of symptomatology after service (adjudicated below) since service under 38 C.F.R. § 3.303(b), the theories of direct service connection (38 C.F.R. § 3.303(d)), presumptive service connection based on "chronic" symptoms in service (38 C.F.R. § 3.303(b)), and presumptive service connection for a back disability manifesting to a compensable degree within one year of service (38 C.F.R. §§ 3.307, 3.309) pursuant to the same benefit are rendered moot. There remains no question of law or fact as to the fully granted service connection issue; therefore, the direct service connection and presumptive service connection based on "chronic" symptoms in service theories or to 10 percent within one year of service will not be further discussed. See 38 U.S.C. § 7104 (stating that the Board decides questions of law or fact). The Veteran essentially contends developing a back disability from sustaining an in-service injury, and that symptoms of the back disability have continued since service separation. Specifically, at the September 2017 Board hearing, the Veteran testified to sustaining a back injury after the left leg fell into a hole during service. The Veteran also testified to seeking in-service treatment for the back injury that included the use of crutches. See September 2017 Board hearing transcript. The June 2011 VA examination report reflects the Veteran reported injuring the back after the left leg fell into a hole during service and that he was subsequently treated with crutches for "a couple of weeks." The June 2012 notice of disagreement reflects the Veteran wrote that an in-service back injury resulted in treatment with crutches for two weeks. Initially, the Board finds the Veteran has a current disability of arthritis. A June 2011 VA treatment record reflects the VA examiner specifically assessed early DJD. Next, the Board finds that the Veteran sustained a back injury during service after falling into a hole. The September 2017 Board hearing transcript and the June 2011 VA examination report each reflect that the Veteran reported sustaining an in-service back injury after left leg fell into a hole. The Veteran is competent to report an in-service left back injury. Significantly, a service treatment record from January1988 reflects that the Veteran sought treatment for a back strain. The Board further finds that, after a review of all the lay and medical evidence of record, the evidence is at least in equipoise on the question of whether symptoms of arthritis of the back have been continuous since service. Although the Veteran was not specifically diagnosed with a back disability of arthritis in active service, such is not required. See 38 C.F.R. § 3.303(d) (providing service connection may be granted for any disease diagnosed after service when the evidence establishes in-service incurrence). The September 2017 Board hearing transcript and the June 2011 VA examination report each reflect that the Veteran reported sustaining an in-service back injury, and that symptoms have continued since separation from service. A May 2017 lay statement reflects that the spouse wrote that the Veteran has experienced back pain since separation from service. The Board finds that the Veteran and spouse have provided credible statements and testimony, as well as lay histories provided to medical personnel, that symptoms of arthritis of the back have been continuous since service. Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay statements regarding continuity of symptomatology provide a direct link between the active service and the current state of his condition). VA treatment records also demonstrate treatment back disability symptoms after service separation. The Veteran's assertions of the onset of symptoms of back arthritis during service and reports of symptoms of arthritis of the back since service, in the context of the demonstrated in-service injury and current diagnosis of arthritis, are sufficient to place in equipoise the question of whether symptoms of the current degenerative arthritis were continuous since service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that, based on "continuous" post-service symptoms of arthritis of the back, presumptive service connection is warranted under 38 C.F.R. § 3.303(b). As the criteria for presumptive service connection for arthritis of the back based on continuous post-service symptoms (38 C.F.R. § 3.303(b)) have been met, with the service connection benefit being granted, all other service connection theories are moot. ORDER Service connection for a back disability of degenerative joint disease is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs