Citation Nr: 21061567 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-36 034A DATE: October 4, 2021 ORDER Service connection for a low back disability is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), having been withdrawn, is dismissed. FINDINGS OF FACT 1. The Veteran has a current diagnosis of degenerative arthritis of the lumbar spine. 2. The Veteran injured the low back in May 2005 during service. 3. Symptoms of a low back disability began during service and have been chronic since service separation. 4. During the May 2021 Board hearing, before a Board decision was issued, the Veteran withdrew the appeal for TDIU. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for low back arthritis have been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for withdrawal of TDIU have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from August 2003 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for lumbar disc disease. In May 2021, the Veteran testified at a Board virtual hearing, before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. 1. Service Connection for a Low Back Disability is Granted. The Veteran contends that service connection for a disability manifesting chronic low back pain is warranted. Specifically, the Veteran contends that he injured his back during Marine Corps martial arts training around 2005 when he was thrown to the ground and then someone fell on his chest, compounding the pain and injury. The Veteran testified that he sought treatment following the injury and was placed on a profile. The Veteran also reported that he worked as a support equipment and heavy diesel mechanic during service, which was a physically demanding job that required a lot of bending and lifting 50 to 100 pounds, and he participated in mandatory 10-mile marches during which he wore approximately 125 pounds of full battle gear on his back. The Veteran endorsed chronic lower back pain and stiffness since the in-service back injury that continued after service separation. He testified that he did not seek treatment more than once nor report his chronic back pain at service separation because he thought his level of pain was normal, and in Marine culture repeatedly going to sick bay for pain is deemed a sign of weakness that is frowned upon. Therefore, he self-treated his back pain with ibuprofen for years and only sought medical treatment in 2011 because his back pain had progressed to the point of severe, debilitating pain over the preceding 6 months that he was no longer able to tolerate. See May 2021 Board Hearing Transcript; see also January 2012, December 2013 correspondence. Under the relevant laws and regulations, service connection may 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). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. The Veteran is currently diagnosed with degenerative arthritis of the lumbar spine, which is considered a "arthritis" recognized as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply to the claim for service connection for a low back disability. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The evidence shows a current disability of degenerative arthritis in the lumbar spine, as reflected in the November 2011 VA treatment notes. Service treatment records show that the Veteran was seen for low back pain in May 2005. After a review of all the lay and medical evidence of record, the Board finds that the Veteran sustained a back injury in service. A May 2005 service treatment record shows that the Veteran was seen for complaints of upper rib pain and lower back pain on May 11, 2005, which is consistent with the Veteran's lay statement of sustaining a back injury in Marine martial arts training during which he was thrown to the ground and someone fell on his chest, causing significant back pain. The record shows that the Veteran was placed on temporary profile with no mandatory physical training and no heavy lifting until May 18, 2005. The Veteran has reported and testified that he did not seek treatment or report his back pain after the May 2005 injury, instead choosing to manage the back pain with ibuprofen, as he thought his level of pain was normal and did not want to be ostracized for repeatedly going to sick bay. There is no record of additional treatment for any musculoskeletal pain or condition during service, and the Veteran denied any recurrent back pain at the August 2007 service separation. The Board finds that the evidence is at least in equipoise on the question of whether symptoms of lumbar spine degenerative arthritis have been continuous since service. Although the service treatment records only reflect one incident of low back pain, the Veteran has provided credible lay statements of chronic symptoms of back pain that began in service and have been continuous since service separation, which he self-treated until his pain became unbearable. Post-service records show that the Veteran initially called the VA clinic and reported chronic low back pain in October 2011, which he indicated had been present for at least a couple years. He reported that his pain was usually relieved with walking or stretching but was getting worse in the last 3 months, taking longer to reduce his pain. The Veteran presented for an initial examination in November 2011, during which he provided a contemporaneous history, for the purpose of treatment, of chronic back pain for 6 months or more. November 2011 imaging of the lumbar spine revealed L5-S1 degenerative arthritis with large disc extrusion and severe stenosis impinging on the right S1 nerve. In January 2012, he reported chronic back pain for the past four to five years, that is, since approximately 2007 or 2008 and within one year of service separation in November 2007. The Veteran reported that his back pain was exacerbated to a severe level over the past year. Moreover, the record shows that the Veteran underwent a lumbar L5-S1 laminectomy and discectomy in January 2012, within five years of service separation. See October 2011, November 2011, January 2012 VA treatment records. The VA examiner in September 2013, opined that the low back disability was not related to service. The examiner reasoned that the Veteran's history is not consistent with the medical records, as there are no service treatment records indicating low back strain and the Veteran denied back pain at the August 2007 separation examination. Also, the examiner noted that there is no post-service chronicity, as low back pain was noted to be of 6 months duration in November 2011. See September 2013 VA examination report. However, the record shows treatment for back pain and a physical profile in May 2005 during service that is consistent with credible reports of a martial arts injury. Additionally, an October 2011 VA treatment note indicates that the Veteran's low back symptoms had been present for a couple years and in November 2011 the Veteran reported a history of chronic back pain for six months or more, not just 6 months. The evidence also includes that in 2012 the Veteran provided a lay history, for the purpose of treatment, noting a history of chronic back pain for four or five years that became severe over the past year, which is inconsistent with a finding of back pain for no more than 6 months duration. The VA examiner in September 2013 does not explain how the Veteran, whose spine was indicated as normal upon service entrance, and who had a physically demanding military job and low back injury during service in 2005, with no record of post-service injury, would have such a severe back condition in his early 20s that he would require spinal surgery within five years of service separation. As the purported VA opinion in September 2013 was based on materially inaccurate factual assumptions that included no chronicity of low back symptoms for many years after service separation, the opinion is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis, but cannot reject the opinion solely because the history was from the veteran). Because the Board has resolved reasonable doubt to find continuous post-service symptoms of lumbar spine degenerative arthritis and is granting presumptive service connection on that basis under 38 C.F.R. § 3.303(b), all other theories of service connection are rendered moot, including direct service connection. This obviates the need for a direct nexus opinion (September 2013) to relate the low back disability to service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for presumptive service connection for lumbar degenerative arthritis have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Withdrawal of TDIU Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing or on record at a hearing at any time before the Board promulgates a decision. Withdrawal may be made by a veteran or by his or her authorized representative. 38 C.F.R. § 19.55. During the May 2021 Board hearing, prior to the promulgation of a decision by the Board, the representative indicated that the Veteran was withdrawing the appeal for TDIU. As such, there remains no allegation of errors of fact or law for appellate consideration regarding the issue of TDIU. Accordingly, the issue will be dismissed. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.