Citation Nr: 20044979 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 12-28 005 DATE: July 7, 2020 ORDER Entitlement to service connection for a lumbar spine condition is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the probative evidence weighs in favor of finding that his lumbar spine arthritis began during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine arthritis have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from July 1975 to July 1979. In May 2016, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. In June 2016, the Board reopened and remanded the issue herein. In April 2017, the Board denied the issue herein. In a December 2017 Joint Motion for Partial Remand (JMPR), the U.S. Court of Appeals for Veterans Claims (Court) vacated the April 2017 Board Decision and remanded the issue herein. In May 2018, November 2019, and March 2020, the Board remanded the issue herein. 1. Entitlement to Service Connection for a Lumbar Spine Arthritis Presumptive service connection may be warranted for certain chronic diseases listed at 38 C.F.R. § 3.309(a), including arthritis, if manifest to a compensable degree within one year from discharge from service. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Direct service connection generally requires 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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Although a competent medical opinion is generally required to establish etiology, competent and credible lay evidence of chronicity and continuity of symptomology may also establish etiology. See 38 C.F.R. § 3.303(b); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran has contended that his current low back condition is etiologically related to an in-service low back injury in 1979. See January 1980 VA Form 21-526; September 1980 VA examination report; April 2012 Statement; September 2012 VA examination report; May 2016 Board hearing transcript; April 2018 Statement; June 2019 VA opinion report; July 2019 Brief; November 2019 VA examination report; January 2020 Brief; March 2020 VA opinion report; May 2020 Brief. Notably, the Veteran’s military occupational specialty was a heavy antiarmor weapons crewman; as such, the Board concedes that a lifting injury would be consistent with the conditions and circumstances of the Veteran’s in-service duties. See DD Form 214. Service treatment records (STRs) were negative for back abnormalities upon entrance (see June 1975 entrance examination), but documented an in-service back injury around late 1978 or early 1979 (see May 1979 separation examination, which indicated a lower back abnormality and noted a back injury five months prior when the Veteran pulled a muscle during a police call). In the January 1980 VA Form 21-526 (only a few months after separation), the Veteran initiated this claim and reported a low back injury during service in January 1979. November 1989 imaging from Bay Pines VAMC found narrowing of the L4-L5 disc space and narrowing of the L5-S1 interspace, possibly on the basis of disc derangement. During the September 1980 VA examination, the Veteran reported that he incurred a lifting injury to his lower back in June 1979 and that he was treated at the dispensary; the Veteran further reported pain, stiffness, and soreness in his back. The examiner did not note functional loss, but ordered a lumbosacral x-ray, which found narrowing of the inner space between L5 and S1. A March 2005 Tampa VAMC record noted low back pain, but the provider noted that it was due to passing a kidney stone a few days prior. An October 2005 Tampa VAMC record noted lower back pain shooting down the left leg but did not discuss onset or etiology. An April 2011 Tampa VAMC record noted lower back pain but did not discuss onset or etiology. An October 2011 Tampa VAMC record note a past history of degenerative joint disease (DJD) of the lower back but did not discuss onset or etiology. In the April 2012 Statement, the Veteran reported a back injury in 1978 while supervising his unit during cleanup (someone operating machinery dropped a dumpster on the Veteran’s back); the Veteran further reported that his back has not been the same since and that his providers at James A. Haley VAMC told him that his current back condition stemmed from the in-service incident and had worsened. SSA medical records include an August 2012 internal medicine examination documenting the Veteran’s report of back pain beginning in 1977 in the military during an accident where he was knocked to the ground by a dumpster; the provider diagnosed low back pain with radiculopathy. During the September 2012 VA examination, the examiner diagnosed degenerative disc disease (DDD) of the lumbar spine and noted an initial diagnosis on October 19, 2005, after imaging conducted at Tampa VAMC. The examiner opined that the condition was less likely than not incurred in or caused by service, noting that: STRs failed to document a chronic lumbar spine condition; there was no medical documentation of back problems until the 2000s; and the Veteran reported that he had no back problems from service until he had acute low back pain in 1987 while working in a stockroom at Publix. Notably, the Court’s December 2017 JMPR found the September 2012 VA opinion to be inadequate. During the May 2016 Board hearing, the Veteran testified that he had a back injury in service when a dumpster hit his back and that he went to clinic where he was checked, treated, put on bed rest for a while, and then put on light duty. The Veteran also testified that a provider at Bay Pines VAMC in 1982 told him that his two lower vertebras were “messed up” and pinching a nerve. The Veteran further testified that he was in a car accident in May 2014 that aggravated his back condition. The Veteran further testified that he had been receiving Social Security disability benefits for his back condition since March 2014, but had previously worked in retail management, freight logistics, and construction post-separation. In the April 2018 Statement, the Veteran contended that he injured his back during service and that he reported the injury to VA in August 1979, within a month after separation. The Veteran noted the September 1980 findings of narrowing and contended that his condition continued to worsen over time, with continuous problems since the in-service injury. The Veteran further reported that he was forced to reduce his work in 2008 due to mobility restrictions from his back and that he became unable to work in 2015, at which time he applied for Social Security disability benefits. The June 2019 VA opinion was unfavorable; however, the Board’s November 2019 Remand found it to be inadequate. During the November 2019 VA examination, the Veteran reported an injury in 1977 when a dumpster hit him in the shoulder and he fell down, which caused back pain ever since; imaging found DDD and DJD affecting nearly every level (L1-S1) to varying degrees. The November 2019 VA opinion was unfavorable; however, the Board’s March 2020 Remand found it to be inadequate. In the January 2020 Brief, the Veteran contended that the back condition was not due to the natural aging process (as suggested by the November 2019 VA examiner) because he was only in his 20s when imaging began revealing narrowing. The March 2020 VA examiner explained that the DDD diagnosis shortly post-separation is not the equivalent as a diagnosis of DJD (arthritis), such that the Veteran’s DJD (arthritis) did not manifest to a compensable degree within one year of discharge from service. Notably, although this examiner indicated that the condition was less likely than not due to service, her rationale seemingly suggested a positive etiological relationship (she said that the September 1980 x-ray likely showed disc narrowing, which was most likely due to disc bulge or herniation in younger persons, and that disc narrowing was “always” related to disc degeneration with age). Based on the evidence above and resolving reasonable doubt in the Veteran’s favor, the Board finds that the probative evidence weighs in favor of finding that his lumbar spine condition began during active service. The Veteran is unable to prevail on the presumptive service connection theory because his arthritis was not diagnosed or manifested to a compensable degree within one year from discharge from service. However, the Veteran does prevail on the direct service connection theory because the probative evidence weighs in favor of findings that his current condition was at least as likely as not caused by his in-service injuries. Specifically, the Board highlights that: since May 1979, the Veteran has consistently reported injuring his lower back during service, which is consistent with the conditions and circumstances of his service; imaging approximately four months post-separation showed narrowing, despite the Veteran’s young age; imaging shortly over one year post-separation also found narrowing, despite the Veteran’s young age; the Veteran has continued reporting low back symptoms throughout the years and reporting onset since service; and the March 2020 examiner opined that the September 1980 x-ray likely showed disc narrowing, which was most likely due to disc bulge or herniation in younger persons, and that disc narrowing was “always” related to disc degeneration with age. Despite some minor inconsistencies about the year of the in-service injury and the nature of the injury (whether it was a lifting injury, a dumpster falling on him, or both), the Board finds the Veteran’s reports to be otherwise consistent and, thus, probative to establish continuing low back symptoms since service. Further, the March 2020 opinion established a positive etiological relationship between the narrowing immediately post-separation and the subsequent disc degeneration with age, as discussed above. Thus, direct service connection is granted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.