Citation Nr: 21069862 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-57 981 DATE: November 22, 2021 ORDER Entitlement to service connection for a low back disability is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, symptoms of the currently diagnosed back disability had their onset during service and have been continuous since separation from service. CONCLUSION OF LAW The criteria to establish service connection for a back disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.303(b), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2000 to September 2005. In July 2021, the Veteran testified in a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. The Board notes that at the hearing, the issue on appeal was discussed as whether new and material evidence was received to reopen the claim for service connection for a back disability; however, upon further review of the record, the Board finds that new and material evidence is not necessary. Specifically, a June 2013 rating decision deferred a decision regarding the claimed back disability. Thereafter a July 2013 rating decision denied the claim. The Veteran submitted a July 2014 notice of disagreement, to which the RO responded to with an August 2014 letter indicating the NOD could not be accepted for the July 2014 rating decision because this was only a provisional decision, but that the NOD will be accepted with regards to the final July 21, 2014 determination. The Board notes that the July 21, 2014 determination included the denial of a back disability. A statement of the case was issued in November 2016 and the Veteran timely perfected the appeal later that month. A supplemental statement of the case was issued in September 2018. Service Connection for a Back Disability Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Arthritis is a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For a showing of a chronic disease in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. 38 C.F.R. § 3.303(b). Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. Id. The presumptive service connection provisions based on "chronic" in-service symptoms and "continuity of symptomatology" after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic' disease became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Analysis The Veteran asserts that his back disability had its onset during active duty service. The Veteran is currently diagnosed with degenerative joint disease and degenerative disc disease of the lumbar spine. See e.g., October 2012 MRI and March 2018 compensation examination. Regarding in-service incurrence, the service treatment records show multiple complaints of back pain. Next, regarding a nexus, a July 2013 and March 2018 examiners provided negative nexus opinions. A July 2013 VA examiner opined that the low back condition was les likely than not related to the complaints in service. The examiner reasoned that the complaints during service were not of the mid-spine area but where isolated to the lateral adipose tissue. In March 2018, the Veteran underwent an additional back examination, at which time he reported that the onset of his back pain was in 2000 after loading heavy equipment, at the time, he was diagnosed with a strain and prescribed Ibuprofen. After a review of the record, the examiner opined that the claimed condition was less likely than not related to service. The examiner noted that the records showing lateral adipose tissue injury could not be located (the Board notes that those are within the Veteran's service treatment records). Nevertheless, the examiner reasoned that these findings were not suggestive of a chronic back condition. The examiner further noted that treatment records nine months after service showed no back disabilities on the active problems list, which was evidence that the Veteran was not having any back problems at the time. The examiner concluded that it was not until June 2009 that the Veteran complained of back problems and a diagnosis was not rendered until 2012, nearly 7 years after discharge from service. However, the Board finds these opinions carry little to no probative weight. The 2013 opinion simply misstated the Veteran's medical history. First, while one of the notations during service mentioned the lateral adipose tissue, both treatment records specifically noted the complaints and treatments were for "lower back pain." Second, the examiner failed to address the Veteran's assertions that he had ongoing back pain since service. The 2018 opinion is also inadequate as the examiner solely relied on the lack of objective evidence of back problems since separation from service while ignoring the Veteran's competent lay assertions. In addition, this examiner did not address notations subsequent to service, which noted that the back pain was chronic and present for 11 years. Neither examiner addressed the evidence of degenerative joint disease in a young veteran or the fact that his military duties required continuous heavy lifting. Notably, according to September 2012 VA treatment records, the Veteran complained of episodic back pain for eleven years. The medical professional indicated that this was a chronic low back pain, probably mechanical. A month later, an MRI of the lumbar spine revealed evidence of mild degenerative joint disease. During a July 2017 DRO hearing, the Veteran testified that his back bothered him throughout service but that he only went to sick call once or twice. He explained that working in supply prevented him from going sick call regularly. He indicated that he had to do continuous heavy lifting during service and that his back pain continued since that time. During the 2021 Board hearing, the Veteran again testified that he hurt his back in service and that the pain was ongoing since that time. On review of all the evidence, lay and medical, the Board resolves all doubt in the Veteran's favor in finding that the back disability had its onset during active duty service. In so finding, the Board assigns high probative value to the service treatment records that show multiple complaints of back pain, as well as the Veteran's competent and credible testimony of continuous symptoms since separation from service. At the very least, the evidence is in equipoise, and service connection for a back disability is therefore warranted. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.