Citation Nr: 21062525 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 16-01 723 DATE: October 7, 2021 ORDER Entitlement to service connection for a lumbar spine degenerative joint disease and degenerative disc disease is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his lumbar spine disability is at least as likely as not related to service. CONCLUSION OF LAW The criteria for service connection for lumbar spine degenerative joint disease and degenerative disc disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1962 to December 1965. This matter comes before the Board of Veterans' Appeals (Board) from a May 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing in February 2019 before a Veterans Law Judge (VLJ). As a written transcript of that proceeding could not be created, the Veteran appeared for a second hearing before the undersigned VLJ in September 2020. A transcript of the latter proceeding is of record. This claim was previously remanded by the Board in November 2020 to obtain Social Security Administration records. The Board finds substantial compliance with the remand directives and therefore another remand is not necessary. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran's appeal had originally included the issues of service connection for a respiratory disability and gout. However, following the Board's November 2020 remand, the Agency of Original Jurisdiction (AOJ) granted service connection for both claims. The grant of service connection constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, these claims are no longer in appellate status. Id. at 1158 Where 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 (b); 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). Entitlement to service connection for a lumbar spine disability The Veteran contends his low back pain began in service due to his duties as a combat engineer and continue to present day. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for direct service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board concludes that the Veteran has a current disability that is related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran has a current diagnosis of lumbar spine degenerative joint disease and degenerative disc disease. See November 1998 and February 2004; August and October 2015 VA examination and addendum. The Veteran's military occupational specialty (MOS) was combat engineer. Service treatment records show treatment for back and shoulder muscle spasm in November 1963. Entrance and separation examinations do not reflect any back symptoms or conditions. The Veteran reported the onset of back pain in 1963 while lifting floating bridges. See August 2015 VA examination. At the September 2020 Board hearing, both the Veteran and his wife competently and credibly testified that the Veteran had back pain upon his separation from service, and that his back pain has progressively worsened to present day. In a March 1988 written statement, the Veteran's wife reports back trouble since 1976 or earlier. A September 1987 letter from the Veteran's former employer noted frequent absences from work in 1981 and 1982 due to back problems. Private treatment records from 1987 to 2017 reflect chronic low back pain since at least the 1970's to present day. See, e.g., February 1987, September 1999, and May 2021 private treatment records. In support of his claim, the Veteran submitted several statements from treating physicians opining that his present lumbar spine diagnoses are due to his in-service duties. See May 2014 Statement by Dr. J.L and May 2021 Statements by Dr. J.C. and Dr. B.P. The Board also notes the August 2015 VA examination and opinion that the Veteran's lumbar spine degenerative joint disease is at least as likely as not related to his duties in service which required heavy labor and the consistent use of back muscles. However, an October 2015 VA addendum opinion opined that it was less likely than not due to service as the evidence showed back pain occurring initially after a fall in 1972. While no treatment records exist prior to the 1980's, the Board finds that the Veteran continued to experience symptoms of low back pain since his separation from service. The Veteran is competent to report that he experienced those symptoms since service. His statements are credible and entitled to probative weight, as they are internally consistent, consistent with other evidence of record which shows that these symptoms were attributable to his various lumbar spine diagnoses listed above. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current lumbar spine degenerative joint disease and degenerative disc disease are related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for lumbar spine degenerative joint disease and degenerative disc disease is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Blevins, 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.