Citation Nr: 21007227 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-36 210 DATE: February 9, 2021 ORDER Service connection for degenerative arthritis of the lumbar spine is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the degenerative arthritis of his lumbar spine is at least as likely as not related to an in-service injury. CONCLUSION OF LAW The criteria for service connection for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard. He had active duty training from October 1975 to March 1976 and active duty from January 2010 to January 2011. He retired from the Army National Guard in July 2015. In an August 2018 decision, the Board denied the Veteran’s claim for service connection for degenerative arthritis of the lumbar spine. He appealed that Board decision to the United States Court of Appeals for Veterans Claims. Pursuant to a joint motion for partial remand, in a May 2019 Order, the Court remanded that Board decision for readjudication in accordance with the joint motion. In December 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Service Connection—Degenerative Arthritis of the Lumbar Spine 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; 38 C.F.R. § 3.303(a). 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. 38 C.F.R. § 3.303(d). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Active military, naval, or air service includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(2), (24); 38 C.F.R. § 3.6(a). The Veteran asserts that his low back disorder is related to an in-service injury. After further review, the Board concludes that service connection for a low back disorder is warranted. Service treatment records show that the Veteran injured his low back when he fell while playing basketball in January 1984 during a period of INACDUTRA. He was diagnosed with a contusion of the low back. At a March 2002 examination, he reported a history of recurrent back pain or back injury. An October 2002 MRI of the lumbar spine revealed degenerative disc disease. A March 2004 record shows that he has had low back problems since 2001 and that, while he can run and lift, he cannot perform sit-ups. A March 2004 private medical record shows a history of chronic back pain aggravated by sit-ups. In March 2004, he was placed on a physical profile of no sit-ups for his low back, which the examiner recommended should be permanent. In April 2004, the profile was approved as permanent. At a November 2015 VA examination, the Veteran reported a history of bone spurs noted on MRI in 2002 and being placed on a permanent physical profile of no sit ups for his low back. He noted back pain with spasms on exertion but no specific complaints at the time of the examination. The examiner provided a diagnosis of degenerative arthritis of the lumbar spine. The examiner concluded that it is more likely than not that the Veteran’s low back disorder was incurred in service based on his history and examination. However, the examiner did not have access to the Veteran’s claims file. In an April 2016 addendum opinion, after a review of the Veteran’s claims file, the examiner concluded that it is less likely than not that the low back contusion in 1984 is related to the Veteran’s current low back disorder as there appears to have been no significant complaints until early 2000, and the timing of his complaints does not support a severe injury in 1984. Given the above, the Veteran’s service treatment records show that he injured his low back in 1984. According to the medical evidence of record, there is no evidence of further back problems until March 2002 when he reported a history of recurrent back pain. Only then was he diagnosed with degenerative disc disease of the lumbar spine and soon thereafter placed on a physical profile due to his low back disorder. He continued to serve for 13 more years with no complaints or additional treatment. At the December 2020 hearing, however, the Veteran testified that he has had intermittent low back symptoms since the in-service injury. Thus, in this case, the evidence indicates that the Veteran had a continuity of symptoms of a low back disorder in service despite the lack of treatment records. While the VA examiner did not review the Veteran’s claims file in providing the initial opinion, the examiner was nevertheless competent to provide one. That opinion essentially was based on the Veteran’s reported history of low back pain since the in-service injury in 1984. The Veteran is competent to give evidence about observable symptoms such as low back pain. Layno v. Brown, 6 Vet. App. 465 (1994). Further, as noted above, the evidence indicates that he did have a continuity of low back symptoms. Thus, that opinion is probative as to whether his low back disorder is related to service. Hayes v. Brown, 9 Vet. App. 67 (1996). While the examiner later provided a negative opinion, that opinion was based on a lack of treatment in service, which in this case is not probative as to whether the Veteran had a continuity of low back symptoms at that time. The Board observes that continuity of symptoms, not treatment, is required to support a claim for service connection. The opinion also does not address the question of in-service aggravation, to include as due to the effects of added wear and tear of, or additional unreported injuries to, the Veteran’s low back during the remainder of his more than 35-year career in the Army National Guard. The Board also finds credible his testimony of having intermittent low back symptoms since the in-service injury. In light of the above, and resolving reasonable doubt in the Veteran’s favor, the Board finds that his degenerative arthritis of the lumbar spine is at least as likely as not related to an in-service injury. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, service connection for degenerative arthritis of the lumbar spine is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.