Citation Nr: 21006680 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 15-24 919 DATE: February 4, 2021 ORDER Entitlement to service connection for a back disability is granted. FINDINGS OF FACT 1. The Veteran has a current diagnosis of degenerative arthritis of the spine. 2. Resolving reasonable doubt in the Veteran’s favor, his claimed back condition began during active service. CONCLUSION OF LAW The criteria for service connection for the Veteran’s claimed back condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1989 to December 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2018. A transcript of the hearing has been associated with the record. In July 2020, the Board remanded the matter for an addendum opinion to address lay statements regarding symptom onset and continuity. In October 2020, an addendum opinion was completed in substantial compliance with remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a back condition The Veteran contends that he suffered a back injury in service and has experienced back pain ever since. See December 2018 Board hearing transcript; April 2012 Statement in Support of Claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Here, the Board notes that the Veteran’s diagnosis of arthritis is listed as chronic disease under 38 C.F.R. § 3.309(a). Service connection may also be established when the evidence shows that a Veteran had a chronic condition in service or during the applicable presumptive period. 38 C.F.R. § 3.303 (b). Arthritis may be presumed to have been incurred or aggravated during service if it becomes disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. In characterizing the issues on appeal, the Board recognizes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As the medical evidence indicates that the Veteran has received multiple diagnoses such as a spinal strain, sprain and degenerative arthritis, the claim has been expanded to include degenerative arthritis, consistent with Clemons. As to the first element, a current disability, an October 2020 VA examination shows a diagnosis of degenerative arthritis of the spine. A 2014 X-ray confirmed thoracic spine multilevel degenerative joint disease. See July 31, 2014 Marquis X-ray. Regarding an in-service incurrence, the Veteran reported he was involved in a slip and fall accident while in the Navy and has had back pain ever since. See December 2018 Board hearing transcript; April 2012 Statement in Support of Claim. The Veteran’s Service Treatment Records (STRs) indicate that he was seen for complaints of back pain. See October 28, 1989 STR. The Veteran’s Military Personnel Records (MPR) confirm he served on the U.S.S. Forrestal in numerous roles including stretcher bearer, naval fireman, decontamination team, damage control team and workgroup supervisor. See MPR. This is consistent with his December 2018 hearing testimony. The Veteran’s statements about the mechanism of the injury (slip and fall while carrying a heavy object) are consistent, as his account of the mechanism of the incident has remained unchanged during the pendency of his claim. The Board finds that it is also consistent with the places, types, and circumstances of his service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). While a diagnosis of a back condition was not made during service, the Board resolves reasonable doubt in favor of the Veteran to find that the in-service element is met due to the in-service back injury and report of symptoms during service. Accordingly, the Board finds that the in-service incurrence element is met. As to the last element, a causal relationship, weighing against the claim is an October 2020 negative VA examiner’s opinion that the Veteran’s back disability is less likely than not related to service. The examiner reasoned that although the Veteran visited sick bay for back pain after a fall, there was no diagnosis recorded in the C-file, and he had a normal spine examination in January 1989, February 1989 and December 1991. The examiner added “there not a lot of records of ongoing persistent back pain,” and “little corroborating evidence of ongoing pain.” See October 2020 VA examiner opinion, pg. 5. Here, the Board notes that the January and February 1989 examinations pre-date the Veteran’s slip and fall. Therefore, the opinion is partially based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Regarding the examiner’s comment regarding continuity of symptoms, the Board notes that lay evidence cannot be determined non-credible merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1336-37. And, the examiner noted some evidence of continuity of symptoms. See October 2020 VA opinion, pg.5. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms supports a later diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The Veteran is competent to report symptoms of back pain as pain is perceived through the senses. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Even so, a lack of contemporaneous medical evidence can be considered and weighed against lay statements; medical records first document complaints in August 2013. However, weighing in favor of the claim are consistent and competent lay statements, evidenced by objective medical records, that he has had a continuity of symptoms of back pain since service. See November 9, 2009 treatment record (CAPRI); April 2012 Statement in Support of Claim; August 16, 2013 CAPRI; March 19, 2014; CAPRI; September 29, 2014 CAPRI; August 31, 2015 CAPRI; June 26, 2017 CAPRI; December 2018 Board hearing transcript; February 26, 2019 CAPRI; October 2020 VA examination. Taken together, the medical and lay evidence, the Board finds the evidence weighing in favor of a finding that the onset and continuity of symptoms since service to be at least in equipoise with the October 2020 VA examiner’s negative nexus opinion. 38 C.F.R. § 3.303(d). As such, the doctrine of reasonable doubt is for application, and the Board finds that service connection is warranted for the Veteran’s claimed for back condition. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McKenzie, 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.