Citation Nr: 21010433 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 18-17 525 DATE: February 24, 2021 ORDER Entitlement to service connection for a low back disability is granted. Entitlement to service connection for an acquired psychiatric disorder, to include depression and panic disorder is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran’s in-service back pain were manifestations of his current disease entity, and manifested to a compensable degree within the presumptive period. 2. The evidence is at least in equipoise that the Veteran’s depression was proximately caused by his service-connected back condition. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an acquired psychiatric disorder as secondary to the Veteran’s service-connected low back condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1981 to June 1987. This appeal comes before the Board of Veterans’ Appeals (Board) from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters have previously come before the Board. In June 2018, the Board remanded the Veteran’s claim for service connection for his back condition for further medical examination and opinion. In October 2019, following a remand by the United States Court of Appeals for Veterans Claims, the Board remanded the claim for service connection for an acquired psychiatric disorder for a medical examination and opinion. Subsequently, the Veteran was provided with VA examinations for both conditions. Accordingly, the Board’s instructions have been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection 1. Entitlement to service connection for a low back disability is granted. The Veteran seeks entitlement to service connection for degenerative arthritis of the 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, 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, 1166-67 (Fed. Cir. 2004). The Veteran is presently diagnosed with degenerative arthritis of the spine, with lumbar spondylosis and small herniated disc at L5-S1 without nerve impingement. See January 2017 Compensation and Pension (C&P) Examination. Thus, the first Shedden requirement is satisfied. The Veteran’s service treatment records show a history of treatment for back pain throughout his period of active service, including a five-month period of lower back pain in 1982 and another period of low back pain in 1987 after a fall during a field training exercise. See Service Treatment Records (STR) - Medical. Accordingly, the second Shedden prong is satisfied. The third Shedden prong requires a causal relationship between the present diagnosed condition and the in-service injury or incurrence. The Veteran’s diagnosis of degenerative arthritis in his back is a “chronic disease” of arthritis under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply. 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 ninety days or more of active service, and certain chronic diseases, such as degenerative arthritis, 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 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. The question for the Board is therefore whether the Veteran has a chronic disease that was shown in service or was manifested to a compensable degree within the applicable presumptive period, or whether continuity of symptomatology has existed since service. In this case, the Veteran has contended that his lower back pain began in service and has continued unabated until the present. See, e.g., January 2017 C&P Examination. The Board finds the Veteran’s statements to be credible, as they are corroborated by his course of treatment for back pain throughout active service. The Board is mindful that a VA examiner has twice declined to attribute the Veteran’s degenerative spine condition to his in-service back pain, observing that degenerative changes in the lower back are a natural part of the aging process. See January 2017 and October 2019 C&P Examinations. However, the Veteran’s credible lay statements regarding his continued symptoms, and the Veteran’s extensive treatment for his back in service outweigh the examiner’s opinions based on the specific facts of this case. The Board finds that the evidence is at least in equipoise that the Veteran’s in-service back pain were manifestations of his current disease entity, and manifested to a compensable degree within the presumptive period. The elements for service connection have been satisfied, and the claim for service connection is granted. 38 C.F.R. §§ 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 2. Entitlement to service connection for an acquired psychiatric disorder to include depression and panic disorder is granted. The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include depression and panic disorder. The Veteran has presented statements in support for both direct service connection and secondary service connection. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). (Continued on the next page)   The Veteran underwent a VA examination for his psychiatric disorders in January 2020. The examiner diagnosed the Veteran with major depressive disorder, which was attributed to the Veteran’s chronic pain in his back and neck. The examiner wrote an opinion that it was at least as likely as not (50 percent or greater probability) that the Veteran’s condition was proximately due to or the result of his back pain. See January 2020 C&P Examination. The Board is mindful that the examiner’s statement linked the Veteran’s diagnosis to his “service-connected condition,” though the Veteran was not yet service connected for his back condition at that time. However, the examiner repeatedly linked the Veteran’s depression to his chronic pain throughout the examination. While considering the January 2020 VA examiner’s opinion along with the Veteran’s competent and credible lay statements in this case, the Board therefore finds that the evidence is at least in equipoise that the Veteran’s depression was proximately caused by his service-connected back condition. The criteria for secondary service connection have been met, and the claim for service connection for an acquired psychiatric disorder to include depression and panic disorder is granted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, 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.