Citation Nr: 21009266 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-61 911 DATE: February 22, 2021 ORDER Service connection for lumbar spondylosis and herniated disc at L5-S1 (back disability) is granted. Service connection for a head scar is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his back disability is at least as likely as not related to his in-service back pain complaints and treatment. 2. Resolving reasonable doubt in the Veteran’s favor, his head scar is at least as likely as not attributable to a head injury during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a head scar have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from September 1974 to March 1975 and from June 1978 to April 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in January 2021. A transcript of the hearing has been associated with the claims file. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, 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 or aggravated in service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease under 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptomology to establish service connection is limited only to those diseases listed under 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the Veteran’s second period of service resulted in a discharge under other than honorable conditions due to “frequent incidents of a discreditable nature with civil or military authorities.” Based on the rating decisions contained in the claims file, the RO has determined that the circumstances surrounding the Veteran’s separation were not a bar to benefits. Back Disability The Veteran asserts that his back symptoms began during service and have continued since service. With respect to evidence of a current disability, the record shows the Veteran has been diagnosed with lumbar spondylosis and a herniated disc. A current disability has therefore been demonstrated. With respect to evidence of an in-service injury, the Veteran stated that he injured is back during a fall. While the record does not demonstrate a fall; in December 1978, the Veteran reported back pain related to an injury caused by lifting heavy objects 4 months prior. The Veteran was prescribed 72 hours of bedrest. Therefore, an in-service injury has been established. As the record contains evidence of a current disability, and evidence of an in-service injury, what remains to be established is whether there is a nexus between the diagnosed back disability and his in-service injury. In August 2015, the Veteran was provided a diagnosis of degenerative arthritis (spondylosis and herniated disc at L5-S1) of the spine. The examiner found the Veteran’s back disability less likely than not related to service. The examiner reasoned that his in-service injury was transitory and resolved prior to separation from service because the record was negative for complaints of back pain since service. However, the examiner did not address the Veteran’s statements of ongoing back pain. In contrast, the Veteran maintains that his back pain has persisted since service. During the hearing, the Veteran’s daughter testified that he has always experienced back pain. The testified that she is his healthcare provider and that she remembers him having difficulty picking things off the ground. See January 2021 hearing transcript. The Veteran and his daughter are competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a [layperson] is competent to report on that of which he or she has personal knowledge). Additionally, the Veteran and his daughter’s statements are credible because they have been consistent with each other and the other evidence of record which describes the Veteran’s back pain. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The competent, credible evidence both for and against the claim are in equipoise. The Board resolves doubt in the Veteran's favor and finds that service connection for the Veteran's current back disability is warranted based on continuity of symptomology since service. Head scar The Veteran asserts that his head scar is related to service. Specifically, he maintains that he was hit in the head with a guard stick during service. See June 2016 Correspondence and January 2021 hearing transcript. At the Veteran’s January 2021 hearing, the Veteran testified that the scar over his eyebrow was the scar related to his in-service injury. Therefore, a current disability has been established. In March 1975, the Veteran received nine sutures on his scalp due to being hit in the head with a “night stick.” Therefore, an in-service injury has been demonstrated. The Board notes that the Veteran’s September 1981 separation examination was negative for any identifying body marks, to include scars. However, the Veteran demonstrated a residual scar during the hearing at the same location and has provided competent and credible lay nexus evidence in support of his appeal, which is sufficient to establish equipoise in this case. The record does not include any evidence suggesting that the Veteran received a wound to the same location requiring stitches or resulting in a scar at any point following his separation from service. As noted above, the Veteran is competent to report observable events. Additionally, his statements are credible because they are consistent with the record and it is conceivable that a wound requiring sutures would result in a scar. (Continued on the next page)   Therefore, resolving reasonable doubt in his favor, the claim of service connection for a head scar is granted. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.V. Palatt, 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.