Citation Nr: 21001577 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 11-08 180 DATE: January 11, 2021 ORDER Entitlement to service connection for degenerative arthritis of the lumbar spine is granted. FINDING OF FACT The Veteran’s degenerative arthritis of the lumbar spine was present during active duty service. CONCLUSION OF LAW Service connection for a low back disorder, currently diagnosed as degenerative arthritis of the lumbar spine, is warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1991 to July 1991, from October 2001 to February 2002, from February 2003 to February 2004, and from July 2006 to December 2007. The Veteran had additional service in the Army National Guard. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO or AOJ). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Video Conference Board Hearing in March 2017. A transcript of the hearing is of record. This case was previously before the Board in February 2020 when it was remanded for additional development. It has now been properly returned to the Board for further appellate action. Stegall v. West, 11 Vet. App. 268 (1998). The record also indicates that a privacy act request submitted by the Veteran in March 2020 remains outstanding. However, given the grant of service connection below, the Board finds that there has been no prejudice to the Veteran. No further notice or assistance to the Veteran is required in order to fulfill the VA’s duty to assist the Veteran in the development of this claim. Entitlement to Service Connection for Degenerative Arthritis of the Lumbar Spine Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection can be demonstrated for a disease diagnosed after service 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). Alternatively, 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 under 38 C.F.R. § 3.303 (b); Barr v. Nicholson, 21 Vet. App. 303 (2007). Where a claimant asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, he or she can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a), including arthritis. Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). A layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In determining whether service connection is warranted for a disability, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that service connection is warranted for a chronic low back disorder as it is the result of injuries during active military service. Specifically, he states he sustained a low back injury after a fall down a flight of stairs in September 2007 while working in Greece as Military Police. See April 2020 statement. The record establishes a current chronic disability. The Veteran was diagnosed with degenerative arthritis of the spine at his April 2014 and June 2017 VA examinations. VA and private treatment records also document treatment for the claimed low back disorder and related symptoms. The evidence also establishes an in-service injury. A September 2007 service treatment record documents the Veteran sustained a fall while he was in Greece. Service treatment records also show that in November 2007, the Veteran reported back pain during his deployment. Post-service treatment records document complaints of back pain in March 2008. See March 2008 VA examination report. A July 2008 VA service treatment record further documents low back pain. In December 2009, the Veteran’s wife, G.R.P., wrote that in December 2008, she took the Veteran to the VA hospital due to low back pain. Contemporaneous x-ray of the Veteran’s lumbar spine showed minimal spondylosis of the lower lumbar spine. See December 2008 VA treatment record. On VA examination in April 2014, the examiner opined that the Veteran’s back/spine showed classical changes related to the normal process of aging and also due to chronic biomechanical dysfunctional gait secondary to a pre-service motor vehicle accident with pelvic fracture residuals. In this regard, the record indicates that on August 17, 1996, the Veteran was involved in a motor vehicle accident which caused fracture to his left elbow and pelvis. A pelvic prosthesis was implanted. The Veteran states that the accident occurred while he was traveling from a military drill. See November 2014 statement. Service personnel record documents Inactive Duty for Training (INACDUTRA) on August 17, 1996. There is no determination by the VA that the Veteran was disabled from an injury incurred while returning from INACDUTRA. See 38 C.F.R. § 3.6(e). Nevertheless, the Veteran does not contend that he sustained his low back injury as result of the August 1996 motor vehicle accident. See April 2020 statement. The evidence of record also shows no indication of a lumbar spine disorder prior to his period of service in 2001. A May 2001 periodic examination includes a physician summary noting injuries sustained by the Veteran in the motor vehicle accident to include right pelvis (with internal fixation) and left elbow injuries. However, a contemporaneous May 2001 clinical evaluation indicates the Veteran’s spine and other musculoskeletal were normal on examination. A March 2009 VA examination report also noted the Veteran had a history of an accidental fall with lower back trauma, and a March 2009 VA treatment record indicated complaints of worsening low back pain “since one year ago.” Furthermore, in a September 2014 correspondence, the Veteran’s ex-wife wrote that the injuries sustained by the Veteran in the August 1996 accident included pelvic fracture and dislocation of the left elbow. She stated that “at no time” was the Veteran diagnosed with back problems, nor did he complain about back problems. She recalled that after the accident, the Veteran wore heavy gear in the course of his duties as a motor officer “without any problems or ever complaining about his back pain when working.” Thus, the Board finds that there was no indication of a lumbar spine disorder prior to his entry into service in July 2006, and the Veteran is presumed sound at service entrance. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Further, based on the foregoing probative evidence of a current low back disorder, diagnosed as degenerative arthritis of the lumbar spine, and, resolving all doubt in favor of the Veteran, probative evidence of an in-service low back injury, X-ray evidence of arthritis within one year of service, and continued low back symptoms from the time of separation from service to the present, the Board finds that the Veteran’s arthritis of the lumbar spine is etiologically related to his active duty service. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. § 3.309; Walker, 708 F.3d 1331, at 1337-39. Service connection for degenerative arthritis of the lumbar spine is warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.