Citation Nr: 21006232 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 13-01 614 DATE: February 3, 2021 ORDER Service connection for arthritis in the left hand is granted. Service connection for degenerative joint disease (DJD) in the thoracolumbar spine is granted. FINDINGS OF FACT 1. The Veteran has a current disability of arthritis in the left hand. 2. Symptoms of arthritis in the left hand were continuous after service separation. 3. The Veteran has a current disability of DJD in the thoracolumbar spine. 4. Symptoms of DJD in the thoracolumbar spine were continuous after service separation. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for left hand arthritis have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. Resolving reasonable doubt in the Veteran’s favor, criteria for service connection for DJD in the thoracolumbar spine have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Coast Guard from July 1978 to April 1980, then transferred to the U.S. Air Force and served from April 1980 to July 1980 and from July 1980 to December 1992, and then served in the Air Force Reserve from March 1998 to September 1998. These matters are on appeal from a September 2009 rating decision issued by the Regional Office (RO) in Seattle, Washington. The Veteran testified at a Board videoconference hearing in January 2016 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. In April 2016, the Board remanded the issues in order to obtain additional medical treatment records and conduct VA examinations to assist in determining service connection for both issues on appeal. VA examinations were conducted in June 2016. Supplemental statements of the case were issued in October 2016 and March 2017. These issues were brought before the Board again in October 2019. The Board denied both issues on appeal. The Veteran appealed the October 2019 Board Decision to the U.S. Court of Appeals for Veterans Claims (CAVC). A September 2020 Order by CAVC adopts a Joint Motion for Partial Remand (JMPR) filed by the parties. Relevant to the instant decision, in the JMPR, the parties agreed that the Board did not provide adequate reasons and bases for not addressing medical treatment records documenting the continuity of symptomatology for both the left hand arthritis and lower back DJD. The parties also agreed that the Board should list the Veteran’s active and reserve service, any periods of service that qualify as ACDUTRA or INACDUTRA, and whether any further development is warranted in that regard. The instant decision is a full grant of benefits; therefore, there is no need for any further development with regard to the Veteran’s service. Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may 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. See 38 C.F.R. § 3.303(d). The Veteran is currently diagnosed with arthritis and DJD, which is a form of arthritis. Arthritis is one of the “chronic” diseases listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 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). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis and DJD, 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. Id. 1. Service Connection for Arthritis in the Left Hand The Veteran contends that the left hand was normal prior to entering service, claims to have reported left hand symptoms on yearly in-service military annual examinations, and contends that the current arthritis is etiologically related to service. See August 2010 Notice of Disagreement. The Veteran claims that the administrative tasks performed in service, like typing, filing, and moving furniture, contributed to the arthritis in the left hand. See January 2016 Transcript. After a review of all the evidence of record, the Board finds that the Veteran has a current disability of arthritis in the left hand. See June 2016 VA Examination. The evidence is in equipoise as to whether the symptoms of the left-hand arthritis have been continuous since service separation. The record contains both medical and lay evidence that indicates that the Veteran experienced continuous arthritis symptoms in the left hand since service separation. See generally, July 1997 VA Treatment Records (Reporting “arthritis-fingers”); April 2004 Private Treatment Records (Documenting complaints of arthritis symptoms); May 2004 Private Treatment Records (Reporting pain in the left hand and the medical examiner recommended avoiding activities like pushups); March 2006 Private Treatment Records (Reporting bilateral hand paresthesias during the night for the last 3 to 4 months); April 2006 Private Treatment Records (Documenting complaints of numbness in the hands for the last six months); November 2006 Private Treatment Records (Noting arthritis in both hands for the last two years); June 2010 VA Treatment Records (Documenting arthritis symptoms); August 2010 Notice of Disagreement; August 2010 Lay Statement; October 2013 Statement in Support of Claim; January 2016 Transcript; March 2016 Lay Statement; October 2019 Appellate Brief; January 2021 Appellate Brief. As such, the Board resolves reasonable doubt to find that arthritis symptoms in the left hand were continuous after service separation. The Veteran submitted to a VA examination in June 2016. The VA examiner rendered negative medical opinions regarding the arthritis in the left hand on the bases of direct service connection and secondary service connection as due to the service-connected right shoulder disability. The opinions pertain only to the theories of direct and secondary service connection, so are not probative in determining presumptive service connection based on the continuity of symptomatology (38 C.F.R. § 3.303(b)) of arthritis in the left hand since service separation. As presumptive service connection is being granted based continuous symptoms since service separation under 38 C.F.R. § 3.303(b), there is no need to discuss entitlement to service connection on 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. 2. Service Connection for DJD in the Lower Back The Veteran contends that the lower back was normal prior to entering service, she injured the back in October 1992 during an in-service vehicle accident, and that the current DJD in the thoracolumbar spine is etiologically related to service. See January 2016 Transcript. After a review of all the evidence of record, the Board finds that the Veteran has a current disability of DJD in the lower back. See June 2016 VA Examination. The evidence is in equipoise as to whether the symptoms of the DJD in the lower back have been continuous since service separation. The record contains both medical and lay evidence that indicates that the Veteran experienced continuous DJD symptoms in the lower back since service separation. See generally, November 2003 VA Treatment Records (Noting mild desiccation changes and degenerative changes in the L5-S1 disc); December 2003 Private Treatment Records (Reporting lower back pain with an approximate onset date of a year prior); September 2010 VA Treatment Records (Reporting lower back symptoms); August 2010 Notice of Disagreement; August 2010 Lay Statement; October 2013 Statement in Support of Claim; January 2016 Transcript; March 2016 Lay Statement; October 2019 Appellate Brief; January 2021 Appellate Brief. As such, the Board resolves reasonable doubt to find that symptoms of the DJD in the lower back were continuous after service separation. The Veteran submitted to a VA examination in June 2016. The VA examiner rendered negative medical opinions regarding the Veteran’s lower back DJD on the bases of direct service connection and secondary service connection as due to the service-connected left ankle disability. The opinions pertain only to the theories of direct and secondary service connection, so are not probative in determining presumptive service connection based on the continuity of symptomatology (38 C.F.R. § 3.303(b)) of DJD since service separation. As presumptive service connection is being granted based continuous symptoms since service separation under 38 C.F.R. § 3.303(b), there is no need to discuss entitlement to service connection on 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 D. Costantino, 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.