Citation Nr: 18151693 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 16-42 337 DATE: November 20, 2018 ORDER Service connection for lumbar spine disorder is granted. FINDING OF FACT [Resolving all doubt in the Veteran’s favor, the Veteran’s current diagnosis of degenerative arthritis of the spine is related to active military service. CONCLUSION OF LAW The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 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 1976 to December 1985. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana denying service connection for lower back injury. Neither the Veteran nor his representative has raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board”). Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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). To establish service connection for a claimed disability, there must be evidence of: (i) a present disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). A disease diagnosed after discharge may still be service connected if the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In some cases, when a disease listed in 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a), including arthritis, and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for lumbar spine disorder is granted. The Veteran has claimed entitlement to service connection for a low back disability, which he contends began in service while participating in an authorized physical training. The Veteran was afforded a VA examination in June 2015, which reflects a diagnosis of degenerative arthritis of the spine. In characterizing the issues on appeal, the Board recognizes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the Veteran’s VA treatment records reflect a current lumbar spine pathology, including spondylosis of the lumbar spine, and degenerative joint disease. Thus, a current lumbar spine disorder is established. In this case, the Veteran’s service treatment records (STRs) confirm a low back injury in October 1980 after a game of football. In November 1980, the Veteran reinjured his back. X-ray results were normal, and the Veteran was diagnosed with muscle strain, at the time. Later in November 1980, the Veteran complained of the back pain spreading to the right side of the body. The examiner noted pain was around the iliac crest, which stretches from the anterior superior iliac spine to the posterior superior iliac spine. Low back pain complaints continued, and in January 1981 the Veteran was diagnosed as having chronic low back pain. See Form DA 3349. In May 1981, the Veteran was referred and examined by an orthopedic clinic. The examiner found evidence of spasm of the lumbar spine, and stated the Veteran had minimal discomfort. He ultimately concluded that there was no apparent musculoskeletal disorder, but noted a protruding lower lumbar disc. After his orthopedic visit, the Veteran contends he was given physical therapy in an attempt to provide pain relief, but to no avail. Finally, the physical therapist performed a manipulation to help realign his back, and the Veteran immediately felt back pain relief. The Veteran further explains that these back manipulations were continued by his flight surgeon until he was given a permanent change of station in April 1982, to Fort Knox, Kentucky. Thereafter, he continued the stretches and manipulations on his own. In June 1982, the Veteran again sought medical care for low back pain, and was again diagnosed with bilateral lumbar muscle spasms. Manipulation and stretches were performed to alleviate the pain, and the Veteran was advised to perform these exercises when needed. In November 1985, the Veteran underwent a separation examination. Overall, the examination was normal, but recurrent back pain was indicated. After active duty, in June 1988, the Veteran had a reserves examination. He reported being in good health and taking no medications, but again indicated recurrent back pain. He commented that the lower back pain injury occurred from October to December 1980, and was treated and rehabbed by his flight surgeon in Fort Bragg, North Carolina. See Service Treatment Records June 1980. In June 2015, after reviewing the Veteran’s claims file, interviewing the Veteran, and conducting a physical examination, the examiner found the Veteran’s low back disability is not caused by or a result of his military service. The examiner opined that the Veteran’s 1980 back injury was determined to be a muscle strain which was treated and resolved, and was so noted on his June 1988 Individual Ready Reserves examination. Additionally, the x-rays taken at the time of injury were normal, the Veteran was seen by an orthopedic specialist and was determined to have muscle strain, and the Veteran’s separation physical showed a normal spine examination. The examiner further concluded that the Veteran’s recent back x-rays show age related changes such as spondylosis and degenerative joint disease and not muscle strain. In February 2016, the Veteran underwent a VA primary care follow-up examination concerning various issues unrelated to low back pain. During this visit he reported experiencing back pain and explained that its onset began in service in the 1980’s. He also mentioned an earlier December 2015 episode of back pain which prompted a visit to the ER. He was treated with medication, and realigned his own back using the methods he learned from the physical therapist. See Notice of Disagreement July 2015. The Board concludes that while the Veteran’s lumbar spine disorder, diagnosed as degenerative arthritis of the spine, was not diagnosed during service and did not manifest to a compensable degree within the applicable presumptive period, low back pain was noted as chronic in service, and there has been continuity of the same symptomatology since service. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). STR’s show the Veteran was treated for low back pain on several occasions during his active duty service. His November 1985 separation examination indicated recurrent back pain; the June 1988 reserves examination again reflected recurrent back pain; and, VA treatment records reflect complaints and treatment for recurrent low back pain as recent as 2015 and 2016. Moreover, the Board deems the Veteran’s reported history of continued symptomatology since active service to be competent, credible, and highly probative. Specifically, his history of complaints since service are consistent with his service treatment records and VA treatment records. In considering the Veteran’s June 1988 statement that his back was injured and rehabbed from October to December 1980, the Board acknowledges his July 2015 statement where he credibly explains that performing the stretches and self-manipulations he was taught by the physical therapist in 1980 help when he experiences flare-ups. Thus, it is construed that the Veteran didn’t consider the back pain to be dissipated, but manageable with self-rehabilitation. Furthermore, the Veteran reported that a doctor in service discussed his back issues with him prior to departing for Ft. Knox and informed him that there was nothing that could correct the problem and that he would have issues with it for the rest of his life. Although the June 2015 VA examiner opined that the Veteran’s lumbar spine disorder was likely age related and not related to his in-service lumbar strain, the Board notes it neglects to adequately address the Veteran’s competent and reliable lay assertions of onset symptomology. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The examiner based the negative opinion primarily upon the fact that the injury in service was a muscle strain, and the current diagnosis is age related changes, such as spondylosis and degenerative disease. However, the examiner failed to address the Veteran’s reports of continued symptomology since service, and did not explain why the in-service strain did not cause the current diagnosis. In sum, the Veteran has currently diagnosed lumbar spine pathology, STR’s note chronic lumbar spine symptomology throughout the Veteran’s active military service, and reserves and VA treatment records reflect continuity of symptomology since service. Thus, the Board finds that a preponderance of the evidence weighs in favor of the Veteran and lumbar spine disability is granted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Russell, Associate Counsel