Citation Nr: 21077274 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-13 020 DATE: December 29, 2021 ORDER Entitlement to service connection for a low back disability for the purpose of retroactive benefits on the basis of substitution is granted. FINDING OF FACT The Veteran's claimed low back disability constitutes a chronic disease, which a continuity of symptomatology links to a condition noted in service. CONCLUSION OF LAW The criteria for a low back disability for the purpose of retroactive benefits on the basis of substitution have been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 5107, 5121A; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.1010. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1960 to December 1979. He died in July 2019. The Appellant is the Veteran's surviving spouse; she has been substituted for the Veteran for the purpose of processing the service connection claim that was pending at the time of his death to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. The Veteran appeared at a hearing before the undersigned in April 2019. In July 2020, the Board remanded the issue of appeal for a nexus opinion, which the Agency of Original Jurisdiction (AOJ) obtained in October 2020, with an addendum in December 2020; however, the Board notes, subsequent to its July 2020 remand, the Appellant submitted new evidence, consisting of highly relevant excerpts of the Veteran's service treatment records, which drastically changes the analysis of the issue on appeal, as will be discussed in more detail below. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The nexus requirement for a chronic disease listed in 38 C.F.R. § 3.309(a) can be established on a presumptive basis if the condition manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The nexus requirement can also be established by a continuity of symptomatology when a condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A condition is considered to be "noted during service" when there is symptoms indicative of, but not dispositive of, a chronic disease. Id. at 1339. When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Prior to his death, the Veteran was diagnosed as having lumbar spine spondylosis without myelopathy, based on radiographic findings that revealed "multilevel degenerative disc disease . . . severe at L5-S1." Spondylosis is a form of arthritis and therefore constitutes a chronic disease under 38 C.F.R. § 3.309(a). As previously noted, the Appellant submitted newly obtained excerpts of the Veteran's service treatment records in September 2020. These records confirm the Veteran was continuously treated for low back pain in service from the early 1960s until his separation from active service almost twenty years later. Specific entries note the Veteran had "narrowed L5-S1 disc space" on x-ray in September 1970 and "very early degenerative changes L5-S1 level" in November 1973, as well as "early DJD of L5 spine" in March 1977. The Board finds these entries are, at a minimum, sufficient to establish a condition "noted during service" as contemplated by the concept of a continuity of symptomatology outlined in Walker. The only issue that remains is whether continuity of symptomatology links the condition "noted during service" to the claimed disability. Post-service treatment records show the Veteran continuously sought treatment for low back pain after his separation from active service up until his death. June 1994 x-rays confirmed degenerative changes of the Veteran's lumbosacral spine with the most significant disc space narrowing being shown at L5-S1, as noted in service treatment records; a finding that was again confirmed on x-ray in December 2009 and in even more detail on magnetic resonance imaging (MRI) in January 2010. During the April 2019 hearing before the undersigned, the Veteran testified he had experienced continuous symptoms of lower back pain since active service but admitted he was unable to locate service treatment records documenting his in-service treatment. The Veteran was competent to report observable symptoms like pain; therefore, his credible testimony is sufficient to establish a link between the condition noted in service and the claimed disability, which constitutes a chronic disease, in accordance with Walker. The Board acknowledges the author of the post-remand October 2020 opinion, as well as its December 2020 addendum, J.R.T., M.D., reported spondylosis is essentially an unavoidable consequence of aging, which does not appear to be the direct result of a specific in-service injury in the Veteran's case; however, J.R.T., M.D., did not discuss the evidence of a potential chronic condition noted in service, to include the aforementioned entries in service treatment record referencing the early onset of degenerative changes at the location of the disability claimed by the Veteran, and rather focused solely on records related to a 1986 motor vehicle accident that was more than a decade after issues at the L5-S1 spine were first noted in the Veteran's case. As a result, the Board finds the probative value of the October 2020 opinion, to include its December 2020 addendum, does not outweigh the evidence establishing a nexus to service based on a continuity of symptomatology. Under these circumstances, reasonable doubt must be resolved in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the Board finds service connection for a low back disability for the purpose of retroactive benefits on the basis of substitution is warranted. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.