Citation Nr: 21071380 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-17 858 DATE: November 30, 2021 ORDER Entitlement to service connection for a low back disability characterized as lumbar degenerative disc disease, lumbar spinal stenosis, and herniated lumbar disc is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, she has experienced low back pain since her separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability characterized as lumbar degenerative disc disease, lumbar spinal stenosis, and herniated lumbar disc are met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1137, 5107, 38 C.F.R. §§ 3.102, 3.303(a)-(c), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force from March 1974 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in June 2016. Service Connection Entitlement to service connection for a back condition The Veteran seeks service connection for a low back disability, which she asserts is related to service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Service connection may be granted based on chronicity or continuity of symptomatology for a disability which is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a), including arthritis. See 38 C.F.R. § 3.303(b). The Board has carefully reviewed the evidence of record and finds that the Veteran's symptoms of low back pain have been chronic and continuous since discharge and was not attributable to intercurrent causes. Thus, resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a low back disability are met. The Board acknowledges the testimony and statements of the Veteran and her sibling in support of her claim, and notes that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. The Veteran is certainly capable of describing any symptoms of back problems that she has experienced during and after service, and her reports in this regard are considered credible lay evidence of symptomatology. Further, the Board notes that arthritis claims may be supported by evidence of a continuity of symptomatology or on a presumptive basis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report her symptoms of arthritis, such as back pain. Layno, supra. See 38 C.F.R. § 3.159(a)(2). The Veteran essentially contends that her back problems have been "chronic and continuous since discharge." These lay statements are considered competent evidence when describing the features or symptoms of an injury or illness within the realm of personal and observable knowledge. There are certain situations in which lay evidence may suffice to prove service connection on its own merits, even in the absence of evidence in the service treatment records. Buchanan, supra. In July 2021, the Veteran testified that she began experiencing low back problems in service following a sexual assault. She testified that she initially sought treatment for her back during service, and continued to have problems with her back ever since she left the military. She testified she sought treatment at VA in approximately the late 1970s, early 1980s. See also December 2016 Statement in Support of Claim; April 2017 Form 9 Substantive Appeal. In May 2021, the Veteran's sibling stated that the Veteran has complained about her back hurting since she left the military. The Board finds that the statements of the Veteran and her sibling are competent and credible, and support a finding that the Veteran had back problems in service, and that her symptoms continued when she returned home from service. At the outset, the Board notes that a current diagnosis of lumbar degenerative disc disease, lumbar spinal stenosis, and herniated lumbar disc has been established. See June 2021 private treatment note; see also May 2016 VA treatment record; May 2020 private treatment record; but see May 2016 VA examination (lumbosacral strain); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Service treatment records reflect that the Veteran was treated for upper and lower back pain in November 1974. Resolving all reasonable doubt in favor of the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that there is a nexus between the Veteran's current low back disability and service. The May 2016 VA examiner opined that the Veteran's current back strain was less likely than not (less than 50 percent probability) due to any remote strains she may have incurred in military service years ago as those strains would have resolved decades ago. The examiner noted that the Veteran reported that her symptoms began in the 1990s, and her back pain had worsened since the early 1990s as she has aged, gained weight, and became more physically deconditioned. The examiner also noted that the Veteran had been working as a mail handler for the past 20 years. The examiner opined that it was more likely than not that her current strain was of recent origin and incurred on her current civilian job or at home. In June 2021, a private treatment provider opined that the Veteran's back disability characterized as lumbar degenerative disc disease, lumbar spinal stenosis, and herniated lumbar disc were all due to prior service-connected injuries. The private treatment provider opined that the Veteran's low back disability was very likely service connected. The Board notes that although the May 2016 VA examiner opined that the Veteran's strains in service would have resolved decades ago, the Board finds that the lay statements of the Veteran and her sibling are competent and credible and support an finding that the Veteran had an ongoing back disability during service, and following service. Buchanan, supra; Layno, supra. Further, the Board notes that the May 2016 VA examiner noted that the Veteran only had a lumbosacral strain at the time of the VA examination without conducting any diagnostic testing of the Veteran's spine. The May 2016 VA examiner's opinion was not supported by a subsequent x-ray of the Veteran's lumbar spine in May 2016, which revealed that the Veteran had multilevel degenerative discogenic disease of the thoracolumbar spine. The June 2021 private treatment provider's opinion is competent, credible and probative, and coupled with the other medical evidence of record including the service treatment records, post-service treatment records, and lay evidence, supports a conclusion that service connection for a low back disability is warranted. The May 2016 VA opinion cannot be afforded greater probative value. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. Resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that the evidence of record supports a finding that service connection for a low back disability characterized as lumbar degenerative disc disease, lumbar spinal stenosis, and herniated lumbar disc is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson 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.