Citation Nr: 21004101 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 19-32 085 DATE: January 26, 2021 ORDER Entitlement to service connection for low back disorder, diagnosed as lumbar strain, to include intervertebral disc syndrome (IVDS) and spinal stenosis, is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, his low back disorder, diagnosed as lumbar strain, to include IVDS and spinal stenosis, is related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for low back disorder have been met. 38 U.S.C. §§ 1101, 1110, 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army on active duty from January 1974 to May 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This matter was previously before the Board in May 2020, at which time the Board made a finding that the Veteran’s claim was reopen based on new and material evidence, but remanded for a new VA examination to fully evaluate the current nature and etiology of the Veteran’s low back disability in light of his newly submitted medical records. Service Connection Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen’s disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a), such as arthritis and diseases of the nervous system, are “shown as such in service” (“meaning clearly diagnosed beyond legitimate question,” Walker, 708 F.3d at 1339) or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is “shown as such in service,” the Veteran is “relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought.” Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, “there is no ‘nexus’ requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.” Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Walker, 703 F.3d at 1336; 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for lumbar strain The Veteran contends that his current low back disability had its onset during his active duty basic training, and that this disability has continued post service, which has subsequently led to the current severity of his back disorder for which he should be service connected. See, May 2019 Correspondence. See, January 2013 Notice of Disagreement (NOD). The Veteran was diagnosed with recurrent lumbar strain in service, in April 1974, after rigorous exercises during basic training, and this same diagnosis of lumbar strain was also reported during the Veteran’s first VA afforded examination in October 2013. As such the first element of his service connection claim, a current diagnosis, has been met. Although the record reflects some ambiguity regarding whether the Veteran’s low back strain manifested while in basic training in January 1974 (the Veteran claimed he was body slammed), from an aggravation of a prior back complaint when he was 16 years old (not “noted” at entry, so presumption of soundness applies) or from a fall in the shower in March 1974, also while in service, what is not in dispute is the Veteran’s in-service diagnosis of lumbar strain. As such, the second element of service connection, in service incurrence, has also been met. Therefore, the primary issue for consideration before the Board is nexus, that is, whether the Veteran’s current low back disability is related to his military service. During his October 2013 VA examination, the examiner opined that notwithstanding the Veteran’s in-service lumbar back strain diagnosis, his current low back disability is not related to his military service, citing to a lack of evidence of chronic, progressive complaints of back condition post service. His rationale states as follows: “Vet does not have chronic, progressive complaints of back condition from post service to present. Vet's private treatment records from 2011-2013 are silent for back condition. Vet has record of head on MVA in 2007 with increased complaints of pain, visits to chiropractor. STRs reflect back strain sp fall in shower in 1974, 4/1974 note of back pain x several years with complaints x 1 month; diagnosed with Lumbar strain.” However, a collection of the Veteran’s private treatment record submitted in July 2013 reflects several complaints of low back pain, post service, that are of record, which the examiner did not take into account. These include the following: 10/02/1995 - complaints of low back pain (LBP) radiating to the leg; 07/20/2001 - lower back pain complaint; 12/04/2002 - complaint of LBP on left side; 11/12/2003 - complaints of constant moderate pain on lower back; 05/17/2007 - complaints of low back pain (left side) in conjunction with other muscular complaints; 06/11/2007 - complaint of LBP centralized on left side; 09/28/2007 - complaints of low back intermittent pain. Although the frequency of the Veteran’s complaints appeared to have temporarily increased following an April 2007 motor vehicle accident (May 2007, June 2007, and October 2007), as noted above, there were several complaints of low pain back on record post service and prior to his accident. Further, the x-ray report taken in May 2007, after his accident, reflects that the Veteran was experiencing muscle spasms in his left mid back region, but there was no report of any subsequent back injury or symptoms specifically attributed to this motor vehicle accident. See, July 2013 Medical Treatment Record - Non-Government Facility. As such, the Board does not deem this to be an intercurrent cause to explain the post-service manifestations of low back disability. Consequently, the Board has given this October 2013 VA examiner’s negative nexus opinion low probative value. The Veteran was afforded another examination in October 2020 following the reopening of his claim. During this examination, the Veteran was also diagnosed with IVDS and spinal stenosis. In terms of significant diagnostic testing, the examiner reported the following: mild central canal stenosis at L4//L5 due to disc bulging, small based midline disc protrusion facet arthropathy, and thickening of ligamentum flavum; mild to moderate bilateral neural foraminal stenosis at L3/L4, L4//L5and and L5/S1, most prominent at L4/L5. In terms of his functional limitations, the Veteran describes being unable to do any physical labor around the house such as cooking, cleaning or laundry. unable to walk, sit or stand for prolonged periods and his need to constantly readjust. However, this examiner also found no nexus between the Veteran’s current low back disability and his in-service diagnosis of lumbar strain, stating the following as his rationale: [A]lthough the Claimant did have back pain in service, the Claimant had a period of approximately 33 years without significant back complaints or medical interventions for the back. The recent back complaints started following a MVA in 2007 and have persisted thereafter. His back conditions have been diagnosed as degenerative in nature. The back condition is less likely than not incurred in or caused by the back condition in service. Here again, this statement regarding a 33-year gap period of lack of symptomology post service is inaccurate given the private evidence of complaints of low back pain of record, post service and prior to his 2007 motor vehicle accident, as previously referenced. Furthermore, the record is replete of the Veteran’s lay statements describing the continuity of his low back pain symptoms post service to the present, which was not addressed in either examination. Consequently, the Board also finds this aspect of the October 2020 VA examination (negative nexus statement) of low probative value. Besides the Veteran’s own statements, he has also submitted several third party lay statements to support his assertions of continuity of symptomology since service. One such statement is from T.L.S., the Veteran’s spouse of 44 years. T.L.S. asserts that she has observed the Veteran symptoms of low back pain since his injury in service in April 1974, that his back pain has gotten progressively worse, and that the Veteran eventually sought help when he became aware of the resources to do so. Further, that through the years, she has regularly observed the Veteran’s difficulty when walking, bending, and even riding in a car and getting off his lawn mower. The Veteran’s 50-year-old daughter, T.L.H., also states that while living at home, she observed similar symptoms right after the Veteran got out of the service, including the Veteran grimacing in pain when doing mundane things around the house. The Veteran’s friend of 34 years, R.H., also attests to observing the Veteran experiencing back pain since service, especially after standing and walking for long periods of time. The Veteran has also submitted a treatment statement from his now retired massage therapist reporting that she administered massage treatment to relieve pain in his lower back and his left leg from August 2003 to August 2005. Furthermore, the evidence of record also includes newly submitted private medical and imaging (MRI) reports that reflect progressive low back symptoms and diagnoses of lumbar stenosis and neurogenic claudication. Among these reports is a January 25, 2018 evaluation assessment of his current disability, in which his treating physician, Dr. A.M., stated the following: “[Veteran] is presenting with lumbosacral strain from injury from war and now have lumbar stenosis and neurogenic claudication” Dr. A.M. also noted that the Veteran was experiencing progressively more pain and declining function with his bowel. The report also appears to attribute the referenced “injury from war” to the Veteran’s sacral lumbar sprain in service. See, March 2018 Medical Treatment Records – Non-Government. The Board finds this assessment tantamount to a positive nexus statement. Finally, a February 2019 private radiological report (x-ray) also reflects degenerative changes noted in the general area of L3-4, and L1-2, which is further evidence of the degenerative nature of the Veteran’s current low back disability. In summary, the Board finds that the evidence is at least in equipoise regarding whether the Veteran’s current low back disability is related to his in-service lumbar strain diagnosis. Moreover, the Veteran’s subsequent IVDS disc disease and spinal/lumbar stenosis diagnoses, both of which are considered chronic diseases, together with the Veteran’s (and other submitted third party statements with personal knowledge of his low back disability since and post service) credible statements of continuity, act to presumptively link lumbar strain, to include IVDA and spinal stenosis, to the Veteran’s active service. Accordingly, and resolving all reasonable doubt in his favor, the Board finds that service connection for the Veteran’s current low back disorder, diagnosed as lumbar strain, to include IVDS and spinal stenosis, is warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, 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.