Citation Nr: 1807447 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-28 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel INTRODUCTION The Veteran had active military service from May 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Detroit, Michigan Regional Office (RO) of the Department of Veterans Affairs (VA). The Board has recharacterized the issue on appeal as above to better reflect the allegations made by the Veteran. In September 2017, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. FINDING OF FACT The Veteran's lumbar spine disability is a chronic disease which the Veteran has experienced continually since his active service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.103, 3.159 (2017). Because the Board is granting the benefit sought by the Veteran, any error with respect to VA's duty to notify or assist does not prejudice the claimant and need not be discussed. II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like arthritis, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b). The Veteran has a current undisputed diagnosis of degenerative arthritis of the lumbar spine with lumbar radiculopathy. In addition, his service treatment records show that he was treated in service for a painful lumbar spine injury resulting from another service member jumping onto him in a foxhole in Vietnam. While he was not diagnosed with lumbar spine arthritis at that time, lumbar spine pain is known to be a symptom of lumbar spine arthritis. The Veteran gave credible testimony at a September 2017 Board hearing that the back pain he experienced after injuring his back in service has continued since service and he currently still experiences the back pain. His testimony is consistent with statements he made at a September 2011 lumbar spine VA examination, where he reported a history of chronic pain in his lower back following his in-service injury. Additionally, VA treatment records show the Veteran made the same statements when seeking treating for his back pain. The Board notes that the September 2011 VA examiner opined that the Veteran's current lumbar spine disability was less likely than not related to the Veteran's documented lumbar spine injury in service because the Veteran's separation examination noted no subjective or objective back conditions. However, the Veteran testified before the Board that there was a disincentive at the time of separation for reporting medical conditions, in that he was so ready to leave and knew he would have to stay longer for further testing if he reported any issues. That being the case, the Board finds that the evidence is in equipoise about the Veteran having back pain when he separated from service. Affording the Veteran the benefit of the doubt, the 2011 negative nexus opinion was based on an incorrect assumption, and the Board affords it little weight. In light of the foregoing, the Board finds that the Veteran has shown a continuity of lumbar spine arthritis symptomatology after service, which is ultimately supported by the diagnosis of a chronic lumbar spine disability and medical opinions of record linking that disability to the lumbar spine pain that onset during service after being injured. As such, service connection for a lumbar spine disability is warranted. ORDER Service connection for a lumbar spine disability is granted. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs