Citation Nr: 18122829 Decision Date: 07/31/18 Archive Date: 07/31/18 DOCKET NO. 15-30 518 DATE: July 31, 2018 ORDER Service connection for a low back disability, to include lumbar strain and arthritis, is granted. FINDINGS OF FACT 1. The service treatment records establish that the Veteran sustained an injury to his low back shortly before discharge from service. 2. Current medical evidence includes diagnoses of lumbar strain with X-ray evidence of mild scoliosis, slight degenerative changes, and mild degenerative disc disease. 3. The Veteran has provided credible evidence of continuity of symptomatology since discharge and until his current diagnoses. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.03, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from May 1974 to January 1976. Entitlement to service connection for a low back disability. The Veteran contends that his current low back disability is the result of the back injury he sustained during active service. He states that he has experienced periodic back pain and flare-ups ever since his original injury. 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, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Recent X-ray findings demonstrate that the Veteran has mild degenerative changes in his spine. If arthritis become manifest to a degree of 10 percent within one year of separation from active service, it is presumed to have been incurred during active service, even though there is no evidence of arthritis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309, such as arthritis. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997), overruled on other grounds by Walker v. Shinseki. In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377(Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337(Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). In this case, the Veteran’s service treatment records show that he was admitted to the hospital in December 1975 following an accident approximately one week prior to admission in which he had sustained trauma to his back. He remained hospitalized for 24 days. The discharge diagnosis was low back strain and contusion. The January 1976 discharge examination found the spine to be normal, although another service treatment record dated that same day noted that the Veteran was hospitalized for 24 days following his back injury. The assessment was resolving lumbosacral strain. As such, the evidence establishes an in-service event and/or injury to the back. The Veteran failed to report for VA examinations scheduled in May 2013 and November 2013. At the June 2016 hearing, the Veteran’s attorney requested that the record be held open so that a private examination could be scheduled. An April 2017 letter from the attorney states that the examination was unable to be scheduled. However, the Veteran has submitted private medical records dating from 1999 through October 2012, which is only two months prior to his December 2012 claim. These show that the Veteran was treated for exacerbations of a back disability on at least 10 different occasions during this period, with nine of these dating from 2006 to 2012. Some of these exacerbations were precipitated by falls, while on other occasions it was the result of simple acts such as bending or carrying luggage. A November 2006 private X-ray study showed mild degenerative disc narrowing at L4-L5 and L5-S1. An October 2007 X-ray study noted additional disc space narrowing and marginal osteophyte formation. A February 2008 magnetic resonance imaging (MRI) study revealed evidence of mild degenerative disc changes at L1-2, and from the L3-4 through the L5-S1 levels with mild disc bulging. More recent diagnoses have included lumbar back strain in September 2012 and back pain with a history of a herniated nucleus pulposus in October 2012. The Board finds that this evidence is sufficient to establish that the Veteran has current diagnoses of a back disability. To establish entitlement to service connection, it is not enough to demonstrate an injury in service and a current diagnosis. There must also be competent evidence of a relationship or nexus between these two events. In the Veteran’s claim, there is no medical opinion that relates the Veteran’s current back disability to his injury in service. The Veteran failed to report to VA examinations that would have addressed the possibility of such a nexus, and he never scheduled the private nexus examination that was discussed at the June 2016 hearing. The Veteran is not competent to express such an opinion on his own on this orthopedic matter involves injury and various processes of the spine. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462-63 (2007). Service connection cannot be presumed, for while there is recent evidence of degenerative changes in the lumbar spine, there is no such evidence in service or within a year of discharge from service. However, the Board finds that evidence of a relationship between the Veteran’s current back disability and his in-service injury has been established by continuity of symptomatology for a chronic disorder – arthritis. The Veteran’s private medical records note that he had chronic back pain as early as May 1999. A February 2008 treatment note states that the Veteran has had longstanding back pain since the 1970s. A July 2008 treatment note states that the Veteran gave a history of back pain, which had been ongoing since a 1974 motor vehicle accident and pinched nerve. A June 2011 treatment note says the Veteran was clear that his current pain was an exacerbation of the same pain he had been having for 30 years, which had been made worse by bending the previous day. A second June 2011 note says the Veteran states his initial injury had been in the military. At the June 2016 hearing the Veteran testified that he has experienced back pain with radiating pain into his left leg ever since his initial in-service injury. The Veteran is competent to report that he has experienced back pain ever since discharge from service. The Board observes that the Veteran’s reports of longstanding back pain and back injuries during active service were given to private examiners for years before he submitted his initial claim for service connection for a back disability in December 2012. This makes it unlikely that his statements were made for the purpose of seeking financial gain, which in turn enhances his credibility. Given that the Veteran’s description of ongoing back pain ever since discharge from service are competent, credible, and partially confirmed by the medical records starting in 1999, continuity of symptomatology is established.   Therefore, a relationship between the Veteran’s current back disability, to include arthritis, and his in-service injury is now shown, and entitlement to service connection is warranted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. L. Prichard, Counsel