Citation Nr: 21075139 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-51 454 DATE: December 17, 2021 ORDER Entitlement to service connection for a lumbar spine disability, diagnosed as mild to moderate spondylotic change most pronounced at L1-S1, multilevel degenerative osteoarthritis of the facets and degenerative disc disease, intervertebral disc syndrome (IVDS), and mild spinal stenosis, is granted. FINDING OF FACT The most probative evidence reflects that the Veteran's mild to moderate spondylotic change most pronounced at L1-S1, multilevel degenerative osteoarthritis of the facets and degenerative disc disease, IVDS, and mild spinal stenosis was incurred during active duty. CONCLUSION OF LAW The criteria to establish service connection for mild to moderate spondylotic change most pronounced at L1-S1, multilevel degenerative osteoarthritis of the facets and degenerative disc disease, IVDS, and mild spinal stenosis have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from October 2008 to February 2009 and from April 2012 to July 2013, including receipt of a Combat Action Badge. The Veteran also had additional service in the Montana Army National Guard. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ's determination, and the present appeal ensued. The Veteran's claim was previously remanded by the Board in December 2019 for further development. The development was completed, and the claim has returned for readjudication. Characterization of issue on appeal As an initial matter, the Board's last review of the Veteran's claim, in a December 2019 remand, focused on medical evidence discussing whether the Veteran's lower back disability had preexisted any period of active service and whether any period had aggravated his disability. However, this concept was based on the possibility that the Veteran may have had a lower back disability which preexisted all periods of service, to include active duty, Active Duty for Training (ACDUTRA), and Inactive Duty Training (INACDUTRA), beginning in 2008. The Board notes that the Veteran's entrance examinations do not note any preexisting disability and it was the opinion of the August 2020 VA examiner that the Veteran's current back disability did not clearly and unmistakably preexist service. Additionally, the Veteran's records indicate that he sustained an injury in June 2012, during active duty, before the additional July 2015 injury during ACDUTRA. As will be discussed below, Board analysis will focus on direct service connection, with the Veteran having been in presumed sound condition at his 2012 entry to active duty. Entitlement to service connection for a lumbar spine disability, diagnosed as multilevel degenerative osteoarthritis of the facets and degenerative disc disease, IVDS, and mild spinal stenosis Service connection may be established for a disability that results from personal injury that is suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also 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). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). When 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; 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). Analysis As alluded to above, the Veteran has made multiple contentions regarding the cause of his low back disability, all relating to his service. The Board acknowledges the July 2015 injury sustained by the Veteran, however, as discussed above, will be focusing on a June 2012 injury, addressed by the Veteran, through his representative, in a January 2018 statement. The Veteran's medical records indicate a diagnosis of mild to moderate spondylotic change in May 2016. Additionally, in a December 2019 VA examination, the examiner noted the Veteran's low back diagnoses as multilevel degenerative osteoarthritis of the facets and degenerative disc disease, IVDS, and mild spinal stenosis. Regarding an in-service incident, the Veteran's service treatment and personnel records include documentation of an injury sustained by the Veteran in June 2012. While on active duty, the Veteran fell from a mine-restive protective vehicle and suffered an injury. Subsequent to the fall, the Veteran began to report low back pain. In light of above, the first two elements necessary to establish direct service connection have been demonstrated, and the crux of the Veteran's case is whether the most probative evidence reflects that this current disability is causally related to his in-service low back injury. The December 2019 medical opinion addressed the Veteran's appeal under a direct theory of entitlement; however, this unfavorable opinion is based on discounting the Veteran's reports of continued low back symptoms during and since service due to a lack of corroborating objective medical evidence. The Court and the Federal Circuit have both held that such rationale is inadequate for the purpose of readjudicating appeals. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board considered remanding the Veteran's appeal again in an attempt to obtain a medical nexus opinion which adequately addresses the crux of the matter at issue under the governing laws; however, such is avoidable in the present case, as there is sufficient evidence supporting an allowance under 38 C.F.R. § 3.303(d). Specifically, the Veteran's service treatment records note the Veteran began to experience low back pain in June 2012, immediately after his injury. Although the December 2019 VA examiner noted the Veteran's complaints of back pain first were reported in 2013 Post Deployment Health Assessments, this is inaccurate, as reports of low back pain began in 2012 and continued through 2013. The Veteran's service treatment records and medical treatment records contain reports of low back pain from June 2012 through May 2016, when the Veteran was initially diagnosed with a low back disability. The Board concludes that the most probative evidence reflects that the Veteran's current diagnosis of multilevel degenerative osteoarthritis of the facets and degenerative disc disease, IVDS, and mild spinal stenosis stems from the June 2012 in-service injury based on his competent and credible reports of low back pain since the initial injury. Moreover, the disabilities in question involve arthritis and diseases of the nervous system that are considered chronic disorder and can be linked to service by way of the Veteran's credible statements of continuity of symptoms, which have not been directly contradicted by any evidence of record. In fact, they have been supported by buddy statements. As such, direct service connection for this disability is warranted. 38 C.F.R. § 3.303(d). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.