Citation Nr: 18144743 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-27 318 DATE: October 25, 2018 ORDER Entitlement to service connection for degenerative joint disease, lumbar spine (claimed as residuals of lower back injury) is granted. FINDING OF FACT The Veteran had symptoms of back pain in service and continuously since service and has a current diagnosis of degenerative joint disease, lumbar spine. CONCLUSION OF LAW The criteria for service connection for degenerative joint disease, lumbar spine have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to September 1971. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veteran’s Affairs (VA) Regional Office (RO) in Saint Louis, MO. 1. Service connection for degenerative joint disease, lumbar spine Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Arthritis, although not shown in service, may be presumed to have incurred in service if manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303 (b). The chronicity provision of 38 U.S.C. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Arthritis (degenerative joint disease) is a “chronic disease” listed under 38 C.F.R. § 3.309(a) (2017). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a) (2017). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 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”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). The Veteran has submitted competent and credible evidence that he has a current disability, namely degenerative arthritis of the spine, as documented in the April 2015 VA examination report. Specifically, the Veteran provides a detailed statement in support of his claim in his May 2015 Notice of Disagreement. Therein, the Veteran asserts that he sustained an in-service slip and fall down a flight of barrack stairs in March 1970 which resulted in a lower back sprain. He claims that he had pain throughout service, and refers to the medical treatment he was administered in service, such as being advised to sleep on the floor to manage his recurrent backaches. Further, he states that he sought medical treatment post-service, but does not have records thereof, and states that he did not use [prescription] pain pills because his employer performed random drug testing, thus, he could not jeopardize his job. The Veteran asserts that he purchased a hot tub to palliate his back pain. He alleges that his back pain has existed since his [in-service 1969] motorcycle accident but has progressively worsened over the last 10-15 years. Initially, the record shows on service entrance, in August 1968, the Veteran reported “no back trouble of any kind.” Subsequent service treatment records (STRs) records go on to document that the Veteran was involved in a motorcycle accident off base in July 1969 resulting in a mild thoracic sprain, which necessitated hospitalization and placed temporary light duty limitations on the Veteran for 3 weeks. Following the July 1969 accident, the Veteran sought treatment for back pain on numerous occasions throughout August 1969. Treatment history shows the Veteran continued to complain of back pain, he was prescribed Paraflex, and was medically advised to sleep on the floor to manage his recurrent back aches. The record shows that in January 1970, the Veteran was diagnosed with a mild thoracic back sprain following a back injury while playing basketball in-service, he was treated and assigned to a desk job for five days. The March 1970 STRs show that the Veteran was admitted for treatment after he sustained a fall backwards down a flight of barrack stairs at Ellsworth Air Force Base, SD. See also the April 1970, Line of Duty Determination report documenting the incident and listing the Veteran’s diagnosis as a traumatic back strain. According to treatment notes from April 1970, the fall the Veteran sustained in the barracks “aggravated his previous [back] injury.” The record shows the Veteran continued to experience recurrent backaches and received in-service treatment. The Veteran was treated for back pain on numerous occasions in April, July, September, and October 1970. For instance, the September records show that the Veteran complained of and was treated for back pain multiple times. During one September emergency care visit, the Veteran was prescribed Darvocet and Robaxin to manage his back pain and erector spinae muscle spasms. During another September visit, the Veteran was prescribed 20 Valium pills to manage his recurring back pain. Thereafter, the Veteran overdosed on the Valium when he ingested 6-9 tablets at one time, treatment notes point that the Veteran was not suicidal, but rather, that he misused the medication to manage his back pain as he continued to engage in full-duty. In his July 1971 separation exam, the Veteran reported “back trouble,” and “swollen or painful joints”. It is worth pointing that the General Medical Officer noted that the Veteran’s report of back trouble referred to the contusion to the lumbar area of back incurred in April 1970 and back spasms from October 1970. Signaling, “no comp., no seq.” Manifestly, the Medical Officer did not point to the two-other distinct in-service back injuries the Veteran incurred nor did he account for the numerous in-service complaints of back pain in 1969 and 1970. In April 2015, the Veteran was afforded a VA examination, where the examiner found that the Veteran’s diagnosis of degenerative arthritis of the spine was less likely than not related to service. The examiner reviewed the Veteran’s claim records, including STRs, noted that the record contained very little information after the Veteran’s discharge from service, and noted that the Veteran had a medical history of back pain complaints. Specifically, the examiner pointed to the treatment the Veteran received in April and October 1970, and pointed to the 1969 motorcycle accident, but did not account for the back trauma the Veteran sustained in January 1970 and March 1970 nor did the examiner indicate he accounted for the in-service treatment the Veteran received throughout August 1969, March, July, and October 1970. The examiner opined that based upon review of the available medical information, it was less likely that the Veteran’s in-service treatment, 45 years ago, is the cause of the current back problems. After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination (a legal condition called equipoise), VA must resolve that doubt in the Veteran’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. App. 49 (1990). Alternatively, to deny a claim on its merits, the evidence must weigh against the claim. The Board acknowledges that the Veteran as a lay person is competent to describe pian without any specialized knowledge or training, and the Board accepts his statements as credible. Layno v. Brown, Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the Veteran’s testimony and statements regarding having back pain since service are credible. (Continued on the next page)   The record indicates that the Veteran suffers from degenerative joint disease, lumbar spine, sustained in-service trauma to his back in three distinct instances, and received in-service treatment for back pain on numerous occasions. Moreover, the Board finds that although the induction exam demonstrated that the Veteran’s spine demonstrated was clinically normal, the fact remains that the Veteran’s separation exam noted “back trouble,” and “swollen or painful joints.” On the June 2016 VA Form 9, the Veteran asserted that he has always had back pain since the incident in service. The Board finds that the Veteran has provided credible lay evidence of continuity of symptoms of the current degenerative arthritis of the spine. The evidence shows symptoms of back pain in service and there is credible evidence of lumbar spine symptoms ever since service. Therefore, service connection for a low back disability, diagnosed as degenerative arthritis of the spine, is warranted. 38 U.S.C. § 5107(b) (2012). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Steele, Associate Counsel