Citation Nr: 18153655 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-23 101 DATE: November 28, 2018 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for degenerative disc disease (DDD) of the spine is granted. Entitlement to service connection for DDD of the spine is granted. FINDING OF FACT A lower back disorder, diagnosed as DDD, had its onset in service. CONCLUSION OF LAW The criteria for establishing to service connection for a low back disability, diagnosed as DDD, have been met. 38 U.S.C. §§ 1101, 1110, 1112 (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 in the United States Army from May 1997 to September 1997 with additional periods of National Guard service. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO) in Denver, Colorado. The Veteran previously submitted a claim of entitlement to service connection for a lower back disorder which was denied in a July 2008 rating decision on the basis that the Veteran’s injury was not chronic and there was not a link between a diagnosed degenerative disc disease and service. The July 2008 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claim within the appeal period. See 38 C.F.R. § 3.156(b). The evidence received since the July 2008 final decision includes VA treatment records indicating that the Veteran has a diagnosis of DDD of the lower back. Consequently, as the newly received evidence indicates that the Veteran has a chronic disability, that may be related to her military service, the Board finds that such newly received evidence is not cumulative or redundant of the evidence of record at the time of the July 2008 decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a lower back disorder. Thus, the Board finds that new and material evidence has been received sufficient to reopen the previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service Connection Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303 (b), (d). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). The list of chronic diseases in 38 C.F.R. § 3.309 (a) includes arthritis or DDD. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that “[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases” and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” The provisions of subsection 3.303(b) for chronic diseases apply in this case and therefore the claim may be established with evidence of chronicity in service or a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-1339. The Veteran has a current diagnosis of DDD of the lower back. In support of her claim the Veteran has submitted several lay statements noting the onset of her back symptoms in service and the persistence of those symptoms since her separation. The Veteran has also submitted several private treatment records that show persistence of symptoms since her separation from active duty in 1997. Specifically, the Veteran reported that she “hurt [her] back in 1997” and aggravated that injury in 1999, and again in 2000. This statement is corroborated by the Veteran’s service treatment records which note the Veteran’s lower back pain in August 1997 and back pain in October 1999 after doing pushups. The Board notes that the Veteran is competent to report factual matters of which she had first-hand knowledge, such as experiencing lower back symptoms, including pain, since active service. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology). Moreover, lay evidence can 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, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Accordingly, the Veteran is competent to report experiencing continuing back symptomatology during and since her active service, as the onset, frequency, and duration of such symptoms as pain and limitation of motion are certainly capable of lay observation. 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). The Board additionally finds her competent statements concerning the onset and continuity of lower back pathology during and since her active service to be credible. See Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001). In this regard, the Veteran’s service treatment records reflect that she injured her back multiple times during service. VA and private treatment records also reflect that she has consistently reported experiencing orthopedic symptomatology attributable to degenerative changes in her back since at least the early 2000s. For example, in October 2004, private treatment notes indicate she has had back pain for 5 years and that seeing a chiropractor was ineffective. A VA examination in May 2008 diagnosed the Veteran with lumbosacral spine diagnosis multilevel degenerative disc disease. In April 2008, the Bliss Army Health Center noted lower back pain and that the Veteran cannot walk for long periods of time due to back pain. The Veteran was treated by the WFCC in April 2009 and November 2010 for complaints of back pain, noting that she had a noticeable limp. The Veteran has private treatment records further explaining the Veteran’s situation, stating that the “[Veteran] has moved frequently and has not had significant continuity of care. [Veteran] states she had been seeing a massage therapist and saw significant improvements in her function and pain levels. Previous PT and it helped but no significant or lasting effects.” See private treatment records dated in January 2013. Further, the Veteran was diagnosed with lower back pain and degeneration of intervertebral disc in April 2016. Accordingly, the Veteran’s competent and credible report of a continuity of lower back pain symptomatology, in conjunction with the competent and credible evidence identifying in-service injuries and the medical evidence confirming the subsequent development of a lower back pathology suggests a link between her lower back disability and her active service. See Duenas v. Principi, 18 Vet. App. 512 (2004). Although there is evidence in the form of a June 2008 and a February 2016 VA examination reports disassociating the Veteran’s current lower back disability from her active service, the examination reports do not constitute probative medical evidence, as they fail to adequately account for the Veteran’s competent and credible lay statements as to the onset of symptoms, specifically failing to address the Veteran’s credible complaints of ongoing lower back pathology since service or to reconcile these complaints with the ultimate conclusion. Accordingly, the June 2008 and a February 2016 VA examination reports are inadequate, and cannot form the basis for a denial of entitlement to service connection. See Nieves-Rodriguez, 22 Vet. App. at 304 (indicating “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.”). Therefore, given the currently diagnosed disability of the lower back, the competent and credible evidence of continued lower back pathology during and since the Veteran’s active service, and in the absence of any probative evidence to the contrary, the Board resolves reasonable doubt in favor of the Veteran. Accordingly, all the elements of the requirements for service-connection for a lower back disability have been met. Consequently, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dion Roberts, Law Clerk