Citation Nr: 21064809 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-17 198 DATE: October 21, 2021 ORDER Service connection for degenerative arthritis of the lumbar spine is granted. FINDING OF FACT The Veteran's degenerative arthritis of the lumbar spine had its onset in service. CONCLUSION OF LAW The criteria for service connection for a degenerative arthritis of the lumbar spine have been 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 in the United States Army from September 1954 to September 1957 and his decorations included the Parachutist Badge. He died in March 2016. The appellant is his surviving spouse and has been substituted as the appellant in this appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This issue was previously remanded by the Board in May 2019, July 2019 and June 2021 for additional development. The Board notes that the November 2015 examination was determined to be inadequate for decision-making purposes. See May 2019 BVA Decision. Additionally, the Board determined that the March 2020 addendum opinion did not substantially comply with the May 2019 board remand directives. See July 2020 BVA Decision; see also Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (requiring substantial compliance with remand directives). Entitlement to service connection for lumbar spine condition. Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 U.S.C. § 3.303. To establish service connection for the claimed disorder, the following criteria must be met: (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The Board finds that service connection for the Veteran's degenerative arthritis of the spine is warranted. The Veteran had a diagnosis of degenerative arthritis of the spine. See November 2015 Back Examination. The appellant asserts that the Veteran's back condition, to include pain with his back began in in service. In a detailed June 2015 statement, the appellant reported that the Veteran received treatment for his back problems at the Chicago VA medical facility in 1958. She added that the Veteran had had a "bad back" as long as she had known him; she also emphasized in that June 2015 statement that they had been married approximately 54 years. In the June 2015 statement, the appellant further reported that the Veteran was "very reluctant" to undergo back surgery so for "40 years he took over-the-counter pain medications, went to a chiropractor, received a serious of injections to his spine and also was given morphine patches. As a final point, the appellant highlighted that he did 22 jumps was in service, which hurt his back and for which he had gone to the infirmary; in this regard the Board observes that the Veteran was awarded the Parachutist Badge. The Veteran's military records confirm he was a paratrooper and was treated for a possible concussion when he jumped from an aircraft in May 1956. See May 1956 STR. Additionally, the Veteran's DD Form 214, confirms that the Veteran was in receipt of the Parachutist Badge. The Veteran's post-service treatment records show he was treated for recurrent pain in his low back. See May 1999 Private Treatment Record. The Board finds that the Veteran (prior to his death) and his wife's report of in-service onset of back pain is both competent and credible. The Veteran's wife explained that the were married for over 50 years and that as long as she knew him, he complained of recurrent pain. Additionally, she stated, he was reluctant to have surgery but instead took over the counter pain medication for 40 years and saw a chiropractor two times a week for a year. She reported he tried injections in his back twice and morphine patches, but they caused him to hallucinate. See December 2015 Lay Statement and December 2015 NOD. The Board acknowledges that the January 2021 examiner provided a negative nexus opinion; however, the examiner did not address whether the Veteran's lumbar condition was related to his history of parachute jumps during service. In the July 2021 addendum opinion, the examiner opined that the Veteran's back disability was not related to service based in large part due to the absence of medical evidence of complaint and treatment for many years after service. Indeed, this opinion is consistent with the other opinions offered by VA examiners between November 2015 and January 2021 Here, in its role as a finder of fact, the Board concludes that the account provided by the Veteran and his surviving spouse, the appellant, that the Veteran had had back problems since service both competent and credible. First, the account is consistent with circumstances of the Veteran's service. 38 U.S.C. § 1154(a). Further, although the records of the Veteran's post-service treatment, including VA care, are not available, that does not impact the credible report of the Veteran seeking treatment for back problems since the 1950s, including at VA, records of which are not available. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2020) (Although evidence of a prolonged period without medical complaint can be considered, VA must also consider all of the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts.). Id. at 1333; see also Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012) (stating that, when the Board uses the absence of evidence as negative evidence, there must be "'a proper foundation... to demonstrate that such silence has a tendency to prove or disprove a relevant fact.'"). Thus, the Board finds that the probative evidence shows that the Veteran had back problems since service and the medical evidence shows that he had been diagnosed with degenerative arthritis of the spine. As such, the Board finds that service connection for degenerative arthritis of the spine is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jordan, Jacquelynn 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.