Citation Nr: 18142313 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 14-27 801 DATE: October 15, 2018 ORDER Entitlement to service connection for a thoracolumbar spine disability is granted. FINDING OF FACT The competent evidence is in equipoise as to whether the Veteran’s current low back disability, diagnosed as thoracolumbar degenerative disc disease, is related to service. CONCLUSION OF LAW The criteria for establishing service connection for a thoracolumbar spine disability have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1957 to May 1978, with service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2016, the Board denied the Veteran’s service connection claim for a low back disability, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a November 2016 Joint Motion for Remand (Joint Motion), the parties moved the Court to vacate the Board’s May 2016 decision. In a November 2016 order, the Court granted the Joint Motion and remanded the claim for action consistent with the terms of the Joint Motion. In July 2017, the Board remanded the claim for additional evidentiary development. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C § 7107(a)(2); 38 C.F.R. § 20.900(c). 1. Entitlement to service connection for a lower back disability Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303 (b) (2017). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). As an initial matter, the Board finds the Veteran has a current low back disability, diagnosed as degenerative disc disease of the thoracolumbar spine. Thus, the remaining question for the Board is whether the low back disability is related to service. The Veteran’s service treatment records (STRs) document treatment for lower back pain on numerous occasions. In May 1976, the Veteran sought treatment for a reported twelve-year history of chronic lower back pain and slipped disc that had worsened in the previous months. In July 1976, the Veteran was diagnosed with low back pain and prescribed physical therapy and medication. In September 1976, he again reported having back pain for twelve years that had worsened; he also reported muscle spasms, with particularly tenderness in the paravertebral muscle; difficulty getting up from a seated position; and pain becoming worse with heat. At the April 2016 Board hearing, the Veteran described injuring his lower back during service around 1964 when he bent over for paperwork and was unable to stand up afterward, that the medical department had him sleep on a plywood board for twenty-four hours and put him on light duty; that since service he has sporadically experienced back problems with his lower back locking up 4 to 5 times per year requiring him to lay on a bed and stretch until the pain is relieved, and that his back pain and disc problems have continued from service to the present time. See April 2016 Board hearing testimony. Further, the Veteran’s wife testified she recalled when the Veteran injured his low back during service, that he ignored the pain and did not complain, that he took over-the-counter pain medication for many years before being prescribed medication fifteen years ago, and that he sought medical treatment for his low back prior to 2000 but the records are no longer available. Id. The Board acknowledges that the record contains conflicting medical opinions. In a December 2011 VA examination report and April 2018 addendum opinion, a VA examiner opined the Veteran’s low back disability was less likely than not related to service, concluding, in part, that there was no medical record of back pain until 2002 and his chronic back problem was more typical of aging. Conversely, in October 2012, a private physician, who treated the Veteran for fourteen years, concluded the Veteran’s back condition was more likely than not aggravated or due to an injury incurred in service. Further, in April 2017, a private physician, in a detailed report, concluded the Veteran’s in-service injuries were primary factors in the development of multiple lumbar herniated discs, as well as tears in ligaments and the development of osteoarthritic changes. Upon review of the evidence, the Board finds the evidence is at least in equipoise regarding whether the Veteran’s current low back disability is a result of service. In light of the above and resolving reasonable doubt in favor of the Veteran, entitlement to service connection for a thoracolumbar spine disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. C. Birder, Associate Counsel