Citation Nr: 21064921 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 19-11 671 DATE: October 22, 2021 ORDER Entitlement to service connection for a low back disability, diagnosed as degenerative joint disease (DJD) and degenerative disc disease (DDD) of the lumbar spine (claimed as degenerative arthritis), is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, his currently diagnosed low back disability is related to his active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for low back disability, diagnosed as degenerative changes of the lumbar spine, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 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 1967 to September 1969, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2017 Department of Veterans Affairs (VA) rating decision. The Veteran's appeal was previously before the Board in August 2019, when it was determined that a remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal, as further evidentiary development was necessary. The matter has now been returned to the Board for further appellate consideration. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§§ 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. §§ 3.303(b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order 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 a low back disability, diagnosed as is granted. The Veteran asserts that his low back disability is due to his active duty service, specifically with regards to the nature of his service as a Military Police serving in the Republic of Vietnam. He further states that he started experiencing low back pain symptoms, which was diagnosed as degenerative arthritis with sciatica, within a few months after his active duty separation in 1969, and that his symptoms have gotten progressively worse over the years. See, March 2017 Correspondence. See, March 2019 Capri Records. For the reasons discussed below, the Board concludes that the most probative evidence of record bolsters the Veteran's contention, and thus, service connection for his claimed low back disability is warranted. The first element of service disability is satisfied in that the record reflects that the Veteran has a current diagnosis of degenerative joint and disc changes of the lumbar spine as reflected in his December 2019 Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) examination. With regards to the second element of in-service incurrence, although there was no specific report of back pain complaints while in service, the evidence of record also reflects the Veteran's competent and credible retrospective reports of experiencing back pain during his active duty service, a diagnosis within one year of his military separation and his continuing reports of back pain symptoms to the present. Based on these facts, the Board finds that the Veteran's claim is subject to a presumptive service connection, since arthritis and disease of the nervous system are chronic disorders. 38 C.F.R. §§ 3.309 (a). As such, the crux of the Veteran's appeal is whether the most probative evidence supports that the Veteran's current low back disability is related to any incident of his active duty. The Board acknowledges that during the Veteran's initial December 2019 Back DBQ, the VA examiner opined that the Veteran's low back disability was less likely than not due to any incident of his active duty, specifically commenting as follows: The veteran's claimed low back disability to include degenerative arthritis was less likely than not incurred in or caused by the in-service illness, event, or injury. There's no evidence of a back injury, event or illness in the current records while claimant was in service. However, the Board finds this aspect of the December 2019 VA examiner's opinion inadequate because it lacks substantial compliance with the August 2019 Board Remand directive, given that it does not provide a complete rationale that takes into consideration all of the evidence of record, including the Veteran's lay statements with regard to his symptoms and the nature of his service. Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, this examiner's negative nexus opinion is solely based on a lack of the Veteran's service treatment records (STRs) specifically reflecting complaints or treatment for low back pain, notwithstanding the Veteran's reported history of such, including symptoms that manifested within one year of his military discharge, and his report of gradual worsening of his symptoms until present. This is also all of record in the December 2019 examination report (Section II Medical History). More importantly, a closer reading of the December 2019 VA examination report reflects that the stated negative nexus is inconsistent with this VA examiner's finding that the Veteran's low back disability initially manifested in 1969, diagnosed as degenerative arthritis of the spine and intervertebral disc syndrome. The importance of this finding is twofold in that: (1) it weighs against the probative value of the unfavorable nexus opinion and (2) it stands for the notion that the Veteran's current disability manifested within one year of his military separation, as his period of service was from September 1967 to September 1969. Therefore, the Board finds that the December 2019 VA examiner's finding concerning the initial onset of the Veteran's disability in 1969 additionally fulfills the nexus element, which is further supported by the Veteran's credible reports of onset, manifestations within the applicable period, and continuity of symptomatology, with no adequate medical evidence to the contrary. In such cases, the applicable laws provide that service connection for the Veteran's low back disability claim, diagnosed as degenerative joint and disc changes of the lumbar spine, is warranted in this case. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. 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.