Citation Nr: 21061267 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 18-10 870 DATE: October 1, 2021 ORDER Entitlement to service connection for chronic lumbar stain is granted. REMANDED Entitlement to service connection for a low back disability other than chronic lumbar strain, to include as secondary to chronic lumbosacral strain, is remanded. FINDING OF FACT The Veteran's chronic lumbar strain had its onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic lumbar strain are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from November 1974 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In September 2021, the Veteran testified at a virtual hearing before the undersigned. The Board has bifurcated the appeal to conform with the evidence of record and to provide a favorable decision on part of the appeal without delay. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of an appeal is generally within the Board's discretion). 1. Entitlement to service connection for chronic lumbar stain is granted. The Veteran asserts that his back disability is related to service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish entitlement to service connection, a veteran must show (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The November 2017 VA examiner diagnosed multiple low thoracolumbar spine conditions, specifically lumbosacral strain, thoracolumbar scoliosis, and mild degenerative joint disease (DJD) and degenerative disc disease (DDD) of the lumbar spine. As the evidence shows the presence of a current low back disability, the first element of entitlement to service connection is met. The Veteran's enlistment examination report shows a normal spine and the Veteran did not report a history of back pain. His service treatment records (STRs) show reports of chronic low back pain with a diagnosis of "minimal chronic low backache," and the Veteran reported recurrent low back pain at separation, although his separation examination showed a normal spine. As the evidence shows the presence of low back pain throughout service, the second element of service connection is met. With respect to the third element of service connection, a nexus between the current disability and service, the November 2017 VA examiner noted the Veteran's complaints of back pain in service and a significant civilian injury in 1983. The examiner opined it was at least as likely as not that the Veteran's current chronic lumbar strain was incurred in service, but also gave negative nexus opinions as to the Veteran's other thoracolumbar spine diagnoses. See November 2017 VA Spine Examination Report at 9 (Remarks). Thus, as the evidence shows a nexus between the Veteran's current lumbar strain and his in-service back pain, the third and final element of service connection is met. Accordingly, service connection for chronic lumbar strain is granted. REASONS FOR REMAND 2. Entitlement to service connection for a low back disability other than chronic lumbosacral strain, to include as secondary to chronic lumbosacral strain, is remanded. At the Board hearing, the Veteran testified that he had not sustained a post-service back injury and the undersigned stated that service connection for arthritis of the thoracolumbar spine may be warranted based on continuity of symptomatology. However, the record indicates that the Veteran sustained a post-service back injury. See, e.g., November 25, 2014 Dr. D.M. Treatment Note (noting that back pain began in 1989 following a work-related injury); November 2017 VA Examination Report (noting significant civilian injury around 1983 and opining that low back disabilities other than chronic lumbar strain are more likely due to post-service events); February 23, 2006 VA Treatment Note (injury in 1983 with diagnosis of severe muscle strain). Thus, the record does not support an award of service connection based on continuity of symptomatology, as such a grant is not appropriate where the evidence indicates that the current chronic disease (such as arthritis) is attributable to intercurrent causes. On remand, records relating to any worker's compensation claim or application for Social Security Administration (SSA) disability benefits filed by the Veteran should be secured, to include associated medical records. Complete VA treatment records and any outstanding relevant private treatment records should also be obtained. Moreover, the Veteran is hereby notified that, given the above-cited evidence, the Board may determine that his testimony that he did not sustain a post-service back injury is not credible, which may result in the denial of his appeal for service connection for a thoracolumbar spine disability other than chronic lumbar strain. On remand, he may submit additional argument or evidence, including argument or evidence addressing this discrepancy. Cf. Smith v. Wilkie, 32 Vet. App. 332 (2020) (fair process requires providing an appellant notice and opportunity to respond when the Board intends to reverse a credibility finding made in a prior remand). The matters are REMANDED for the following action: 1. Secure complete VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records. 3. With any necessary assistance from the Veteran, secure relevant records relating to any worker's compensation claim due to his 1983 work-related injury "while working offshore." 4. Secure records relating to any disability claim filed with the Social Security Administration, to include associated medical records. 5. Provide the Veteran an opportunity to submit additional evidence and/or argument in support of his appeal. Specifically, advise the Veteran that the Board may determine that his testimony that he did not sustain a post-service back injury is not credible, given more contemporaneous evidence of a post-service work-related back injury in the record, which may result in the denial of his appeal for service connection for a thoracolumbar spine disability other than chronic lumbar strain. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.