Citation Nr: 1805022 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-23 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a lumbar spine disability (diagnosed as lumbar spine degenerative disc disease). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1991 to November 1995 and from January 2008 to January 2009, with additional service in the Army National Guard of Michigan until November 2013. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a July 2016 decision, the Board determined that new and material evidence had been received to reopen a claim of entitlement to service connection for a low back (lumbar spine) disability, and remanded that claim for the Veteran to be scheduled for the videoconference hearing he had requested. In April 2017, a videoconference hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. FINDING OF FACT The Veteran currently has a chronic lumbar spine disability (diagnosed as lumbar spine degenerative disc disease), and he has experienced continuity of lumbar spine disability symptomatology ever since injuring his lumbar spine during his service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability (diagnosed as lumbar spine degenerative disc disease) have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Any error in VA's duties to provide notice or assistance in this case is harmless, given the fully favorable determination for the sole claim on appeal. Legal Criteria and Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease, such as arthritis, is shown as such in service or during the presumptive period for chronic diseases, subsequent manifestations of the same chronic disease are generally service connected. Entitlement to service connection based on chronicity of symptoms pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). In the present case, the Board finds that the Veteran has been diagnosed with lumbar spine degenerative disc disease, as shown by VA X-rays taken in March 2010 and May 2012, as well as by a private MRI taken in February 2013. Degenerative disc disease, as a type of arthritis, is expressly recognized as a chronic disease under 38 C.F.R. § 3.309(a). The Board also finds that the Veteran injured his lumbar spine during his service. Specifically, it was noted on an October 1995 Report of Medical History that he had back pain with picking up heavy boxes. In addition, on two Post-Deployment Health Assessments (dated in November 2008 and March 2009) pertaining to his deployment to Kuwait, he indicated that he had back pain as a deployment-related condition. Following his active duty service, a May 2010 VA treatment record noted that at his last training with the National Guard, he had collapsed due to back pain "while doing the required task with full gear on." His Reserve treatment records document that he was given a Physical Profile for back pain in April 2011. Medical Evaluation Board Proceedings in July 2012 document that he had a diagnosis of low back pain and spondylosis, with the approximate date of origin being January 5, 2009, incurred while entitled to base pay. Physical Evaluation Board Proceedings in August 2012 document that his diagnosis of osteoarthritis (listed as low back pain and spondylosis in the Medical Evaluation Board Proceedings) was incurred or aggravated in the line of duty and "Aggravated in Gulf War deployments." Although lumbar spine arthritis was not explicitly diagnosed during his active service, or within the applicable presumptive period, the Board finds that the record contains credible evidence of continuity of symptomatology related to the Veteran's current lumbar spine degenerative disc disease since injuring his lumbar spine during active service (first noted in October 1995 during his first period of active service, and subsequently noted in November 2008 and March 2009 - and in his Reserve treatment records - with reference to his second period of active service). Specifically, during the course of the appeal, including in testimony at his April 2017 hearing, the Veteran has consistently asserted that his lumbar spine disability began during his active duty service and that his lumbar spine symptoms have continued to the present time. In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for a lumbar spine disability (diagnosed as lumbar spine degenerative disc disease), pursuant to the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b), have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. [The Board also finds that the instant decision applies to - and resolves - all pending claims of service connection for a lumbar spine disability, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).] ORDER Service connection for a lumbar spine disability (diagnosed as lumbar spine degenerative disc disease) is granted. ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs