Citation Nr: 21077156 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 15-31 519 DATE: December 28, 2021 ORDER Service connection for degenerative arthritis of the lumbar spine is granted. FINDINGS OF FACT 1. The Veteran has a current disability of degenerative arthritis of the lumbar spine. 2. Symptoms of the degenerative arthritis of the lumbar spine have been continuous since service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1110, 1112, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the U.S. Marine Corps from June 1967 to March 1970, to include service in Vietnam. The Veteran also had service in the Marine Corps Reserve, with a period of active duty for training from March 1974 to August 1974. The Veteran originally applied for compensation for the lumbar spine disability in January 1990. The original claim was denied in June 1990. The Veteran filed a claim to reopen service connection in September 2011. The claim to reopen was denied in a September 2012 Rating Decision for lack of new and material evidence. The Veteran appealed, and in a March 2020 decision the Board reopened the claim, citing the presentment of new and material evidence. The issue was remanded by the Board for further development by the Agency of Original Jurisdiction (AOJ). The issue came before the Board again, who remanded for the AOJ to obtain a medical opinion that considered the Veteran's statements regarding the onset of back pain. The AOJ has complied with these instructions, and the issue is now properly back before the Board. The September 2012 Rating Decision is the basis of the current decision. Service connection for degenerative arthritis of the lumbar spine Arthritis is a "chronic" disease under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served 90 days or more of active service, and certain chronic diseases such as arthritis become manifest to a degree of 10 percent or more within one year after the date of separation from 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 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The Veteran contends that he experienced back pain beginning in service around 1969 and continuously since service to the present. See May 2003 VA Treatment Records. The evidence shows a current diagnosis of degenerative arthritis of the lumbar spine. The diagnosis was most recently confirmed at an October 2020 VA examination. After weighing the evidence, lay and medical, the Board finds that the evidence is at least in equipoise regarding whether symptoms of degenerative arthritis of the lumbar spine were continuous since service. The October 2020 VA examination provided, in addition to the diagnosis of degenerative arthritis, a diagnosis of a lumbosacral strain with a history of onset around 1969. The diagnosis of a lumbosacral strain appears to be based on the reports of the Veteran that pain in the lower back began around 1969. The Veteran has consistently reported this history, both for compensation and for treatment purposes. The earliest noted report is from VA treatment records in May 2003, where the Veteran had sought treatment with VA urgent care for persistent lower back pain. In all these reports, the Veteran has reported histories of continuous back pain since 1969. There are very few post-service treatment records in the evidentiary record for any back problems prior to the May 2003 treatment of the lower back. Relatedly, the Veteran had initially been precluded from receiving VA benefits due to the status of discharge; the status of discharge was updated to allow for benefits in 2016. This explains some difficulty the Veteran had in obtaining treatment for medical conditions. The AOJ was required per Board remand instructions to obtain a medical opinion that considered the Veteran's statements regarding experiencing continuous back pain since 1969. A purported opinion was obtained in October 2021. The examiner opined that it was less likely than not that the lower back pain was due to service. The examiner reasoned that there was no objective medical evidence in service showing any back injury. The examiner stated that the Veteran's statements were taken into consideration, but it appears the examiner did not actually consider the statements as the rationale only relies on a lack of "objective" medical evidence, and does not assess the significance of the Veteran having back pain since 1969. The Board finds that this purported opinion is grounded on an incorrect factual basis, as it does not actually consider the competent lay statements made by the Veteran of continuous lower back pain since service, instead relying solely on a lack of objective medical evidence. As the evidence is at least in equipoise as to the question of continuity of symptoms of degenerative arthritis of the lumbar spine since service, resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for presumptive service connection for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As presumptive service connection is being granted, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Charles Plambeck 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.