Citation Nr: 21007585 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-37 920 DATE: February 10, 2021 ORDER Entitlement to service connection for a lower back condition (claimed as low back injury from fall) is granted. FINDING OF FACT The competent and credible lay and medical evidence of record raises a reasonable doubt as to whether the Veteran’s current lower back condition is related to his military service. CONCLUSION OF LAW The criteria for service connection for a lower back condition (claimed as low back injury from fall) have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1992 to October 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Entitlement to service connection for a lower back condition (claimed as low back injury from fall) Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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 at 1377 (Fed. Cir. 2007). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Analysis The Veteran asserts that his lower back condition began during service and has continued since service. Specifically, on his initial April 2013 claim, the Veteran indicated that he injured his lower back from a fall in the military. Review of the evidence reveals the Veteran has a current diagnosis of spondylolisthesis, lumbar disc disease and herniated disc. See October 2013 VA examination. Accordingly, the Board finds there is competent evidence of the claimed disability and the first element of service connection is established. The Veteran’s February 1995 service treatment records (STRs) reflects that he received treatment in service after a 30-foot fall from a rappelling tower. The Veteran reported injury to his left shoulder and right ankle. The Board notes STRs show no complaints of a back injury at entrance or separation. The evidence reflects the Veteran first sought treatment for his back in June 2005 at private treatment facility, C.B.I. At his initial evaluation he was diagnosed with degenerative disc disease of the lumbar spine with a herniated nucleus pulposus at L5-S1. He reported a few days after moving mulch he experienced pain so severe he had trouble walking without assistance. He stated his pain had been ongoing for about one week. He denied any history of injury. He received regular treatment at C.B.I. from June 2005 through June 2008 which included physical therapy and steroid injections in his back to help with the pain. The Veteran reported some improvement from injections. A December 2012 radiology report indicated chronic low back pain. X-rays revealed bilateral L5 pars defects with Grade 1 spondylolisthesis of L5 on S1. At a June 2013 private examination, the Veteran reported that his back pain began approximately 5 to 6 years ago. He reported that he was treated well conservatively with steroid injections and physical therapy but that the pain has progressed over the years. He stated his back pain is worse throughout the day and worse with movement. The Veteran underwent a L5-S1 transforaminal lumbar interbody fusion in July 2013. On follow up, the Veteran reported that when he hyperextends his back he has some pain bilaterally at the incision site, but otherwise he is doing well. He also reported that he still has some discomfort. In support of his claim, the Veteran submitted Buddy Statements from G.D. and N.C.G. in July 2014. G.D. relayed that he was in the same company as the Veteran at the time of the fall. He reported that he witnessed the Veteran fall to the ground from 20-30 feet. He stated that several days and weeks later the Veteran was still complaining about shoulder and lower back pain/discomfort. N.C.G. reported that she knew the Veteran while she was stationed at Fort Stewart. She stated that he seemed to be very physically fit and did not have any issues completing physically challenging activities but after his fall in late February of 1995, she noticed he complained of his shoulder and back hurting. She further stated that she noticed he could not physically do the things he could do before. During the December 2020 Board hearing, the Veteran testified that he fell from a rappelling tower and landed on his back in 1995. He explained that his shoulder suffered the worst from the fall and that he didn’t realize at the time how bad he hurt his back. He did not get treated for his back, he explained that he just chalked it up to muscles. The Veteran testified that he complained about his back to a few people but thought it was something he could just deal with, and that his back would take care of itself. He stated that a few years after service he was moving mulch and the following day, he could not stand up straight, he was stuck hunched over. He started going to the doctor to get treated for his back after this incident. The Veteran testified there has been no other falls before or since the in service incident. He reported that he still has ongoing issues with his back and that he goes to the doctor every couple of months when it flares up. He stated that his back is better, that he’s not hunched over as much but he still has pain. The Board finds that the Veteran’s description of his symptoms during and since service, as well as the treatment he has received for his low back condition, to be competent and credible. The Board notes that the Veteran’s statements with regard to the continuity of his low back condition have been consistent throughout the appeal period and, as such, affords them high probative value. See December 2020 Board hearing transcript. The Veteran has also submitted private medical evidence indicating that his back pain began after his in-service fall and that it began while on active duty, but worsened over time. Therefore, the Board finds in-service incurrence, as well as continuity of symptomatology since service, have been established by competent and credible evidence. The Veteran was afforded a VA examination in October 2013, during which the Veteran reported his back pain began after his fall in 1995. He reported that the pain was not as bad as his shoulder, he thought it was a muscle injury. He reported the pain got worse and then a few years later he started having mild intermittent pain. He stated in 2005 he had onset of severe pain. The VA examiner opined that the Veteran’s lower back L-5 injury is less likely as not incurred in or caused by a fall while on active duty. The examiner noted the Veteran had a 30-foot fall in service and noted multiple evaluations for his left shoulder but stated there was no indication of back pain in record which included his separation examination. The examiner did not, however, consider the Veteran’s competent and credible reports of continued and worsening lower back pain since service. While the October 2013 VA opinion is considered competent medical evidence, the probative value of the opinion is lessened because the examiner did not consider the competent and credible lay evidence of record regarding the continued nature and progression of his lower back condition. At a minimum, the competent and credible lay evidence gives rise to a reasonable doubt as to whether the Veteran’s lower back pain has been present since service and, in turn, whether his current lower back condition is related to the 30-foot fall he experienced during service. As such doubt is resolved in favor of the Veteran, the Board is satisfied that the criteria for entitlement to service connection for a lower back condition have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Aston, 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.