Citation Nr: 21075594 Decision Date: 12/21/21 Archive Date: 12/20/21 DOCKET NO. 17-02 733 DATE: December 21, 2021 ORDER Service connection for degenerative disc disease of the lumbar spine is granted. FINDING OF FACT The Veteran has experienced continuity of symptomatology related to his chronic spine disability, to include degenerative arthritis, since service. CONCLUSION OF LAW The criteria for service connection for degenerative disc disease of the lumbar spine are met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.304(d), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1966 to October 1968, including extensive combat service in the Vietnam War. The Veteran was awarded the Combat Infantryman Badge, as well as several decorations for personal valor in combat. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In April 2021, the Veteran testified at a video conference hearing from Columbia, South Carolina, before the undersigned Veterans Law Judge sitting in the vicinity of the Central Office in Washington, D.C. A transcript of the hearing is available in the record. This matter has previously come before the Board. In July 2021, the Board remanded this issue for a thorough medical examination which addressed service connection on a direct basis, and on the basis of presumptive service connection due to continuity of symptomatology since service. In August 2021, the Veteran was afforded a new VA examination, and the examiner addressed those theories of service connection. Thus, the Board finds that its remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for degenerative disc disease of the lumbar spine is granted. The Veteran seeks entitlement to service connection for his lower back condition, which he argues was caused by any of several back injuries he sustained during combat service in Vietnam. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In the case of any veteran who engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence of service incurrence or aggravation of in-service injury or disease will be accepted as sufficient proof of in-service incurrence or aggravation, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and every reasonable doubt will be resolved in favor of the veteran. That the particular disease or injury was incurred during service may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Here, the Veteran's combat service is well documented in the record. In addition to the Combat Infantry Badge, which is awarded to infantry soldiers who participated in combat, the Veteran was also awarded an Army Commendation Medal with "V" device for personal heroism during a search and destroy mission, a Bronze Star Medal with "V" device for personal heroism during a minesweeping operation, and a second Bronze Star Medal with "V" device for personal heroism during a reconnaissance in force mission. See May 2017 Military Personnel Record. Thus, the Board finds the Veteran's contentions of injuring his back during combat are "consistent with the circumstances, conditions, or hardships of such service." Accordingly, the Board finds he is a combat Veteran and accepts his lay statements "as sufficient proof of in-service incurrence," despite no documentation of a back injury in his service medical records. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran is presently diagnosed with degenerative arthritis with spinal stenosis and mild multilevel spondylosis. See August 2021 Compensation and Pension Examination. Thus, the first Shedden element is satisfied. Further, arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331, for which presumptive service connection may be granted based on continuity of symptomatology per 38 C.F.R. § 3.303(b). As discussed above, the second Shedden prong is satisfied by the Veteran's competent and credible lay statements of suffering a back injury during combat. A May 2013 VA examination found that the Veteran had suffered a lower back strain in 1968, although he did not receive medical treatment. Yet, the examiner did not provide an opinion as to whether the Veteran's present back condition was caused or aggravated by his military service. See May 2013 VA Examination. In August 2021, the Veteran underwent another VA examination of his back. The examiner documented the Veteran's contentions that the Veteran's back pain had progressively worsened since his military service. However, the examiner wrote an opinion that the Veteran's condition could not be attributed to service because she was unable to locate any service records showing back pain. See August 2021 Compensation and Pension Examinations. During his hearing before the Board in April 2021, the Veteran testified that he has experienced back problems since his discharge from active duty, which have slowly worsened over time. He sought chiropractic treatment from approximately 1970 onward, but he did not have records of such treatment. See April 2021 Hearing Transcript. The Veteran is competent to report his ongoing symptomatology of lower back pain, and he has credibly reported his pain was incurred during service and has continued since that time. Jandreau, 492 F.3d at 1377. Weighing the probative evidence of record, the evidence supports a finding that the Veteran has had continuity of symptomatology attributable to his chronic back disability, to include arthritis, since service. Service connection is therefore granted. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, 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.