Citation Nr: A21020338 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 191118-49230 DATE: December 21, 2021 ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine (lumbar spine disability) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his lumbar spine disability is at least as likely as not related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the US Marine Corps from November 1989 to December 1993. A rating decision was issued in May 2019 and constituted an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In August 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of his service connection claim for a lumbar spine disability most recently addressed in the May 2019 rating decision. In September 2019, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had not been received, therefore, the claim for service connection for the lumbar spine disability remained denied. In the November 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. In August 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. New and Relevant Evidence The Board must determine whether new and relevant evidence was received based only on the evidence of record at the time of the supplemental claim decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). VA regulations, applicable to AMA adjudications, provide that if new and relevant evidence is presented or secured with respect to a supplemental claim, the RO will readjudicate the claim taking into consideration all of the evidence of record. If new and relevant evidence is not presented or secured, the AOJ will issue a decision finding that there was insufficient evidence to readjudicate the claim. In determining whether new and relevant evidence is presented or secured, VA will consider any VA treatment records reasonably identified by the claimant and any evidence received by VA after VA issued notice of a decision on the claim and while the evidentiary record was closed. 38 C.F.R. § 3.2501. "New evidence" is evidence not previously part of the actual record before agency adjudicators. "Relevant evidence" is information that tends to prove or disprove a matter at issue in a claim. 38 C.F.R. § 3.2501(a)(1). A supplemental claim is any complete claim for a VA benefit on an application form prescribed by the Secretary where an initial or supplemental claim for the same or similar benefit on the same or similar basis was previously decided. See 38 C.F.R. § 3.1(p)(2); 3.2501. The evidentiary record for a supplemental claim includes all evidence received by VA before the VA issues a notice of decision on the supplemental claim. For the VA to readjudicate the claim, the evidentiary record must include new and relevant evidence that was not of record as of the date of notice of the prior decision. 38 C.F.R. § 3.2501 (b). Upon receipt of a substantially complete supplemental claim, VA's duty to assist in the gathering of evidence is triggered and includes any such assistance that may help secure new and relevant evidence to complete the supplemental claim application. 38 C.F.R. § 3.2501 (c). Thus, the question before the Board is whether the Veteran submitted new and relevant evidence along with the August 2019 supplemental claim, to warrant readjudication of the previously denied claim of service connection for a lumbar spine disability. A review of the claims file reveals that new and relevant evidence was submitted after the May 2019 rating decision. In August 2019, the Veteran submitted a medical opinion from a private physician that supported his service connection claim and a statement from his wife. The private treatment record and lay statement were not already of record at the time of the May 2019 denial of the claim and may prove or disprove the nexus element of the service connection claim for a lumbar spine disability. As such, the Board finds this evidence to be both new and relevant as to the claim of service connection for a lumbar spine disability to warrant readjudication of the claim. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (d), 3.2501(a)(1), 20.1103. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal as well as any evidence submitted by the appellant or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Applicable Law and Regulations Direct service connection can be established if the Veteran shows (1) the existence of a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements of Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. Due consideration must be given to all pertinent medical and lay evidence in evaluating a claim for service connection for any disability. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence that does not require the proponent to have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Lay statements can be considered competent to establish a diagnosis when the layperson is competent to identify the medical condition, reports a contemporaneous medical diagnosis, or describes symptoms which support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Once evidence is deemed competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465 (1994). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background and Analysis The Veteran contends he is entitled to service connection for a lumbar spine disability due to his active service. He testified in his August 2021 hearing that the boots he received in service did not fit his feet properly because they were too narrow. He was uncomfortable walking in his boots, developed blisters, and lost the nail of his big toe from performing road marches. Generally, road marches were 20 to 25 miles and required him to wear a 70-to-75-pound pack. He first hurt his back during a night road march while leading a fire team. He was responsible for several of the marines completing the march and they were lagging behind. He carried their weapons in addition to his own gear so that they could catch up. The Veteran testified to feeling a click in his lower back after taking on the extra gear during the night march. He completed the rest of the march in pain and continued to feel a knot in his back after the march. He testified that he did not go to sick call because it was discouraged by his leaders. Additionally, as a fire team leader he felt he was an example to others and did not want to appear weak. However, he continued to experience flare ups of back pain every time he went out for training. He was self-medicating with asprin until 1997 when he sought medical care. He indicated not reporting his back issue at his separation examination because he was trying to reenlist. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, as to the etiology of a particular claimed disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran was diagnosed with degenerative disc disease of the lumbar spine, which is a chronic disease under 38. C.F.R. § 3.309(a). However, this condition was not diagnosed in service or shown to manifest to a compensable degree within one year of his release from active service. His service treatment records show a normal clinical evaluation at his August 1989 enlistment examination except for pes planus, a deep pilonidal dimple, and an identifying body mark. In February 1992, he complained of lower lumbar pain. He described his pain generally as a dull ache that would become sharp with certain movements. He was assessed with a lumbar strain with spasm. In January 1993, the Veteran again complained of off and on lumbar pain. At his November 1993 separation examination, he had a normal clinical evaluation except for pes planus and an identifying body mark. In July 2019, J.F., the Veteran's wife, provided a statement. She reported meeting the Veteran in December 1995 at work and marrying in April 1998. She observed him having back pain on the job when lifting, standing, and bending. He limited the number of packages and mail trays he had to lift. She also observed him taking medications for his back during his breaks and lunch. Eventually, they grew close enough that he told her he had dealt with back pain since service and his pain had gotten worse over the years. She encouraged him to seek medical help. The Veteran has a current disability of degenerative disc disease of the lumbar spine. As such, the first Shedden element is met. The Veteran's service treatment records show diagnosis of lumbar strain with spasm in February 1992. In January 1993, the Veteran again complained of off and on lumbar pain. As such, the second Shedden element is met. Therefore, the question to be decided in the present appeal is whether the current lumbar spine disability was caused by or the result of the Veteran's active service. The preponderance of the evidence supports finding that the Veteran's lumbar spine disability is related to his active service. In a March 2019 VA examination, the Veteran was diagnosed with mild degenerative disc disease of the lumbar spine. He reported back pain since 1991 and that his condition was due to his pes planus. His pain was intermittent and exacerbated by excessive bending and prolonged sitting. His flare ups occurred one to three times a week. The March 2019 examiner opined the Veteran's claimed lumbar spine degenerative disc disease was less likely than not proximately due to or the result of his pes planus. The claimed lumbar spine disability was less likely than not proximately due to or the result of his lower lumbar pain during service. The VA examiner acknowledged that pes planus was noted on his August 1989 entrance exam. However, he reported no treatment for pes planus. A review of his service treatment records showed evaluation for low back pain in February 1992 and January 1993. However, his November 1993 separation examination noted pes planus but no chronic back condition. There was no medical documentation for care or treatment for his lower back after leaving service. While the Veteran reported intermittent low back pain in service, there was no continuity of symptoms after leaving service or chronic low back pain condition. There was insufficient evidence to link his current degenerative disc disease to his time in service. The examiner opined that his degenerative changes noted at age 54 were most likely due to aging. A review of the literature provided some suggestion that moderate and severe pes planus could cause intermittent low back pain. While the Veteran experienced intermittent back pain diagnosed as a lumbar strain in service, his current condition was degenerative disc disease. The examiner could not find literature that contained any objective evidence of lumbar strain leading to lumbar disc herniation or degenerative disc disease. The examiner cited to "The Correlation Between Pes Planus and Anterior Knee or Intermittent Low Back Pain," Kosashvili Y, Fridman T, Backstein D, et al., Foot Ankle Int 29 (9): 910-13, 2008. The opinion of the March 2019 examiner was based on a review of the Veteran's health records and a clinical interview with him. This opinion was found probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As discussed in detail above, J.F., the Veteran's wife, provided a statement in July 2019 describing her observations of the Veteran having back pain since December 1995. He had pain with lifting, standing, and bending at work. She also observed him taking medications for his back during his breaks and lunch. He eventually told her he dealt with back pain since his time in service. J.F. is competent and credible to report her observations and conversations with the Veteran. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). However, as to the etiology of a particular claimed disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In August 2019, J.D. (MD), the Veteran's private family physician since 1997, provided an opinion. After reviewing the Veteran's medical history and his military records, he diagnosed degenerative joint disease of the cervical and lumbar spine with chronic mechanical low back pain. The Veteran reported initially experiencing recurring low back pain during his active service but did not seek medical attention for evaluation and documentation. After his discharge from service, he continued to experience recurring low back pain requiring regular doctor visits and periodic absences from work. There were no other risk factors that might have precipitated his current condition. Doctor J.D. opined it was more likely than not that the Veteran's back condition was a direct result of his recurring back strain during his military service. In his professional experience and in the medical literature it was known that recurring back strain and trauma could result in degenerative joint disease of the spine with recurring mechanical back pain. The opinion of Doctor J.D. was accorded positive probative value as the examiner was sufficiently informed of the relevant facts including the Veteran's lay statements so as to be able to form an appropriate medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Having considered the credible lay reports and weighing the medical opinions of record, the Board resolves reasonable doubt in the Veteran's favor and finds service connection for his lumbar spine disability warranted. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.