Citation Nr: 1808104 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-21 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from July 1977 to October 1977. This matter comes to the Board of Veterans' Appeals (Board) from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2016, the Veteran testified before the undersigned Veterans Law Judge at a Board video conference hearing at the RO. FINDING OF FACT The Veteran has a low back disability, characterized as degenerative arthritis of the lumbar spine, that is etiologically related to his military service. CONCLUSION OF LAW The criteria for service connection for a low back disability, characterized as degenerative arthritis of the lumbar spine, have been met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for a low back disability. Service connection is established if it is shown the Veteran has a disability resulting from an injury sustained or a disease contracted in the line of duty during active service, or for aggravation during service of a pre-existing condition beyond the natural progression of the disorder. 38 U.S.C. §§ 1110, 1153 (2012); 38 C.F.R. §§ 3.303, 3.306 (2017). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Only disabilities listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Other disabilities initially diagnosed after service also may be service connected if the evidence, including that pertinent to service, shows the disability was incurred in service. 38 C.F.R. § 3.303(d). Arthritis is a chronic disease. 38 C.F.R. § 3.309(a). To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain diseases like arthritis are considered chronic, and therefore will be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of separation from service. That presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). The Veteran testified at his Board hearing that he injured his back during basic training when he fell from a pole about 40 feet and landed on his rear end on the ground. See October 2016 Board hearing transcript, pp. 3-5. He stated that he sought treatment for his back after service in approximately 1980 at a private hospital; and that prior to treatment, he just took over-the-counter medication such as Motrin. Id. at 10, 12. He noted that he had no other back injuries after service. Id. at 23. The service treatment records only include an enlistment examination in May 1977 and a statement from the Veteran in October 1977 that there had been no change in his medical condition since his separation medical examination. However, there is no separation examination in the records. After service, VA treatment records note that the Veteran sought treatment in the emergency room in October 2008 for lower back pain. It was noted that he worked in housekeeping and did heavy physical work. Examination of the back showed tense para lumbar muscles suggesting muscle partial rupture. The Veteran stated that it was old and that he had noticed it around Christmas of 2000. VA treatment records in 2012 note the Veteran's statements that he had experienced back pain since falling from a pole in service in 1977. See, e.g, May 29, 2012 VA treatment record. A May 2012 VA x-ray examination report shows mild lumbar spondylosis and very early disk degeneration at L3-4 level. The Veteran submitted a medical opinion dated in August 2015 from a VA physician noting that the Veteran had been under his care and had lower lumbar pain since 1977. It was noted that he had lumbar degenerative facet changes at L3-4 and L4-5. The physician stated that it was his opinion that the Veteran's back condition appeared to have been as a result of his reported fall in 1977 during basic training. The Veteran's testimony is considered credible lay assertions of the Veteran having back pain since service. While the service treatment records are negative, they appear to be somewhat incomplete; or at least lacking a separation examination. Efforts to obtain any additional records from the personnel department were unsuccessful. Current diagnoses of record also include degenerative changes in the low back, which is a chronic condition, which can be established by evidence of continuity of symptomatology from the time of service until the present, even where the chronicity of the back disability manifested during service either has not been established or might reasonably be questioned. See 38 C.F.R. § 3.303(b). In addition, a medical opinion was provided from a VA physician relating the Veteran's current back disability to his reported injury in service in 1977. After a careful review of the all of the medical and lay evidence of record, the Board, in its role as a finder of fact, finds that the Veteran's reports of in-service symptoms concerning his back, the competent and credible assertions of back pain since service, and the positive medical opinion are persuasive evidence in favor of service connection. Accordingly, applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. Therefore, the Veteran's claim for service connection for a back disability, characterized as degenerative arthritis of the lumbar spine, is granted. The Veteran's service connection claim for a back disability has been considered with respect to VA's duty to notify and assist. Given the favorable outcome noted below, no conceivable prejudice to the Veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). ORDER Entitlement to service connection for a low back disability, characterized as degenerative arthritis of the lumbar spine, is granted. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs