Citation Nr: 18154002 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-43 053 DATE: November 28, 2018 ORDER Service connection for degenerative disc disease (DDD) and arthritis of the lumbar spine is granted.   FINDING OF FACT The Veteran’s current DDD and degenerative arthritis of the lumbar spine is related to combat service. CONCLUSION OF LAW The criteria for service connection for DDD and degenerative arthritis of the lumbar spine are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to August 1971. The case is on appeal from a September 2012 rating decision. In May 2017, the Veteran testified at a Board hearing. At the hearing, the Veteran submitted additional evidence and waived initial RO consideration. See 38 C.F.R. § 20.1304(c). Although the Veteran’s August 2016 VA Form 9 was untimely by several weeks, the Board waives the timeliness issue given the circumstances of the case. See Percy v. Shinseki, 23 Vet. App. 37, 38 (2009). Service connection for a low back condition. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C. §1154(b); 38 C.F.R. §3.304(d). It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Analysis The Veteran seeks service connection for his low back condition, which he asserts is the result of his military service. In support of his contention, the Veteran points out two incidents during combat operations in Vietnam and Laos. The first incident occurred when, while on patrol, he slipped on a wet rock and landed on his back on top of rocks. A few days later friendly artillery fire was mistakenly fired at his unit’s position where he was hit and thrown backwards. As a result, he fell from a 25-foot embankment, subsequently landing on his low back on a rock slab. A review of the service treatment records (STRs) reflects that, in November 1969, the Veteran complained of back pain in the upper region. STRs also account for a complaint in April 1971 for back pain and for a 2 x 2 abrasion on his low back. The record notes that the incident took place in March 1971, that the wound was drained and dressed, and that the Veteran was to remain in “new duty until heals.” STRs also show the Veteran was seen three additional times in April 1971 for cleaning, draining and dressing his low back abrasion. Further review of the Veteran’s STRs reflects that, during his entrance examination in July 1969, the Veteran reported a history of back trouble and chiropractic treatment. Nonetheless, the examiner determined there were no disqualifying defects, and therefore, found the Veteran sound and qualified for service. In regard to the separation medical exam conducted in August 1971, nothing is mentioned regarding back pain or complaints. Notwithstanding, a review of the Veteran’s lay statements submitted throughout the life of his claim reflects, as he asserts, that his back-pain problem was covered during his military separation medical exam. To that extent, a statement in support of claim (VA Form 21-4138) dated February 1982, states: “I was a combat soldier, reference DD214 [] which shows that I was awarded the [Combat Infantry Badge], and was required to carry a full field [p]ack for one year while stationed in a combat zone. Please be further advised that I [] was so advised during my discharge exam that I ha[d] back problems [].” A later statement dated May 1982, provided that while on patrol in April of 1971, his injury “was incurred as a result of American artillery on [their] own position”. It further asserts that “the concussion from the shells blew [him] down an embankment where [he] landed on an outcropping of rocks.” The Veteran also relate that at that time, his unit suffer tremendous casualties for which he chose, although he was hurt from the blast, to ask a medic to patch him up and stay with his platoon “rather than be medevaced.” It was not until some weeks later he was able to return to his Battalion’s aid station to have his injury properly taken care of. The Veteran alleges the severity of his injury placed him on a sixty-day light duty profile until he recovered. STRs show the Veteran was placed on light duty several times after the dates of the alleged incident. The Board finds that his statements are confirmed by the medical progress notes. The Veteran states he has lived with back pain “that has ranged from slight to severe” and has also “suffered from temporary loss of feeling in [his] left leg.” He adds that he had not sought treatment for his condition for many years since the closest VA hospital is “130 miles round trip from [his] house.” See Statement in Support of Claim dated June 2011. Service personnel records (SPRs) confirm the Veteran had combat status as he was awarded the Combat Infantry Badge, the Bronze Star Medal, and was an infantryman (MOS 11B). In this regard, the Board finds the Veteran’s assertions, in terms of what happened during combat, competent and credible since it is consistent with the circumstances of combat service as an infantryman. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). During the May 2017 Board hearing, the Veteran testified that as soon as his back started bothering him, ten to eleven years after separation from the military, “[he] knew that it was because of when [he] got hurt in Vietnam.” Thereafter, the veteran asserts his back condition gradually worsened but, given the distance between his home and the closest VA Medical Center, he opted to try to control it with over the counter medication. A thorough review of the Veteran’s VA treatment records show current diagnoses of DDD and degenerative osteoarthritis. In March 2012, the Veteran was afforded a VA examination in connection with the claim. The examiner noted that there were several events which led to the current Veteran’s back problems which included “a pre-military contusion, several military contusion/sprain(s), and the civilian long silent period until [the Veteran’s] present back situation evolved sufficiently to rise to a clinical concern level.” His opinion stated that “the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.” The rationale provided by the examiner pointed out that the Veteran’s “ongoing low back issues involve exclusively his low back. They were not present at time of his military induction and there is no record of their existence before then. Therefore, the [Veteran’s] present low back condition could not be due to aggravation of Vet’s upper back contusion which occurred pre-military and was asymptomatic (and presumably resolved) at time of induction.” (Continued on the next page)   In light of this evidence, the Board finds that the Veteran’s current DDD and degenerative arthritis of the lumbar spine is related to combat service. This is particularly so when resolving reasonable doubt in the Veteran’s favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Veteran may have had a back injury prior to service, it cannot be said that it is undebatable that there was a preexisting low back condition, including specifically the current conditions of DDD and arthritis of the lumbar spine. Thus, the presumption of soundness is not rebutted. In-service back injuries are established and the March 2012 VA examiner attributed at least some of the current problems to military contusions and sprains. Therefore, the Board finds sufficient evidence to establish the nexus element of the claim. Accordingly, service connection for DDD and degenerative arthritis of the lumbar spine is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD William Pagan, Associate Counsel