Citation Nr: 21010778 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-35 158A DATE: February 25, 2021 ORDER Entitlement to service-connection for spinal stenosis and degenerative arthritis of the spine (spinal stenosis or back condition) is granted. FINDINGS OF FACT 1. The Veteran’s claim for service connection for TBI residuals was granted post Board Remand in an October 2020 rating decision. 2. The Veteran’s back condition, diagnosed as spinal stenosis as well as degenerative arthritis of the spine, is shown to have exhibited a continuity of symptomology within a year of the Veteran’s discharge from the service, and arthritis is a condition for which service connection may be granted under provisions related to chronic conditions. CONCLUSION OF LAW The criteria for entitlement to service connection for spinal stenosis and degenerative arthritis of the spine have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Navy from February 1966 to January 1970 and is a veteran of the Vietnam Era. This matter returns to the Board of Veterans’ Appeals (Board) after its February 2019 remand (Board Remand) to the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ). The Board remanded the matter for additional evidentiary development. Thereafter, the AOJ issued an October 2020 Supplemental Statement of the Case (SSOC) which continued the denial of the Veteran’s claim for service connection for spinal stenosis. The Board notes that in its February 2019 Remand, the Board also remanded the Veteran’s claim for service connection for residuals from TBI. That claim was granted in an October 2020 rating decision. As the claim has been granted in full, the Board no longer has jurisdiction concerning the claim. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030, 1032 (Fed. Cir. 1997); 38 U.S.C. § 7104, 38 C.F.R. § 20.104. The Veteran and his representative appeared at a videoconference hearing before the undersigned Veteran’s Law Judge in August 2018 (Board Hearing) at which the Veteran provided testimony related to his clams. A copy of the transcript of that hearing is attached to the Veteran’s file. 1. Entitlement to service-connection for a back condition. The Veteran contends that his back condition was incurred in or otherwise caused by his military service, or it is caused or aggravated by his service-connected residuals from a TBI (secondary to TBI). Specifically, the Veteran asserts that while serving as a boatswain’s mate in the Navy, the physical requirements with associated stresses and strains of his duties caused his long-standing back condition, which manifested both during and immediately after his discharge from the service. Additionally, he states that a TBI event, due to a heavy ship portal hitting him on top of his head, caused and/or contributed to his back condition. VA concedes that the Veteran has a current diagnosis of a back condition, diagnosed as degenerative arthritis of the spine, also described as spinal stenosis. Therefore, the question which remains is whether it is related to service. VA also acknowledges that the Veteran has been found service connected for residuals from his TBI event. Service connection may be granted for a 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). To establish a right to compensation for a present disability, a Veteran must show: (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-the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. For certain delineated chronic disorders service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. When a disease listed in 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 symptoms to establish service connection is limited only to those diseases listed at 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). Arthritis is one of the conditions for which the chronic disorder provisions may apply. 38 C.F.R. § 3.309(a). In addition to the regulations for establishing service connection cited above, in order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a different service-connected disability; and (3) evidence, generally medical, establishing a nexus, or link, between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, a lay witness is not competent to establish facts or opinions which require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Veteran’s service treatment records (STR s) are silent to any complaints of, treatment for, or diagnosis of any back related injuries. Similarly, there are no medical records which show that the Veteran’s back condition manifested to a compensable degree within one year of his separation from service. During his August 2018 Board Hearing the Veteran stated that his duties in the Navy required him to do manual labor which included “major lifting,” carrying crates and boxes to put into and take from nets for resupply, for 12 hours a day or more, which caused repeated strain. His duties also included painting with five-gallon paint buckets that he had to carry and lift, for paint repair of the ship, chipping and painting. Later he was a beam operator, which required him to constantly bend over at controls that pick up nets and lines, but he had to take them out of the hole which was a strain on his back. He further stated that while on the ships it was understood that you don’t go to the sick bay for things like a hurting back and that, at that time, if you had little problems like that, they laughed at you and you risked being discharged. The Veteran stated that after his discharge in 1970 he noticed more significant back problems around 1971, and he went to a civilian doctor who put him in a back brace for many months. The Veteran stated that he tried to contact this doctor to find out if he was still around, but this was years and years later, and he was unsuccessful. In an October 12, 2011 statement, the Veteran’s brother stated that prior to his service the Veteran was very active in sports, but after service, he couldn’t play ball anymore (batting/catching) and that in late 1970 or early 1971 he wore a back brace for a long while. The record shows that in July 14, 2000, shortly after the Veteran first sought treatment through VA, a primary care treatment note indicates that the Veteran asked for an x-ray of his back due to history of lower disc problems. The Veteran was provided a VA MRI of his back on July 10, 2003 which indicated multi-level broad-based disk bulge which was most pronounced at the L5-S1, L2-L3, and L3-L4 level, noted to be mild to moderate canal stenosis and neural foraminal narrowing. After these tests, the Veteran was noted as having spinal stenosis. A later, November 2004, VA MRI of the Veteran’s back showed degenerative changes at L2-3 disk space, with herniated disc bulge at L2-3 causing minimal compression of thecal sac, which prompted an assessment of L2-3 spondylosis with small herniated nucleus pulposus (HNP), but it was noted that the Veteran had not yet tried conservative treatment or medications. He was prescribed and provided a back brace the same day. The examiner for the post-remand VA examination of the Veteran confirmed the Veteran’s diagnosis of degenerative arthritis of the spine in 2001. The examiner opined that the Veteran’s back condition is less likely than so (less than 50 percent likely) incurred in, or caused by his military service, or the claimed in-service TBI event. The VA examiner based this opinion primarily on there being no mention of back injuries in his STRs and the lack of medical records related to treatment for the Veteran’s back condition until his VA records in 2000, noted to be more than 30 years after his separation from service. The examiner also relied on general medical concepts and understanding related to the Veteran’s back condition. While the examiner did acknowledge the Veteran’s statement that he sought medical treatment for his back shortly after he separated for the service, and that he was given a brace for that condition, the examiner did not include in his analysis an adequate explanation of why the Veteran’s version of the facts was not accurate, and he did not acknowledge at all the statement from the Veteran’s brother which confirmed the Veteran’s statement, putting the time of the brace to be 1970. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board finds the VA examination to be inadequate and of limited probative value. The examiner did not adequately address all of the competent and relevant evidence which tended to prove the Veteran’s claims. Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion.”). Further, the VA examiner improperly relies on a supposed lack of evidence to disprove the Veteran’s claim, despite the fact that there exists competent evidence which addresses the issues in this case, namely as they relate to the existence of a continuity of symptomology, and the VA’s decision to grant the Veteran service connection for his claimed in-service TBI event, for which the Veteran claims secondary service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (“the trier of fact should consider all of the evidence including … the amount of time that elapsed since military service, and any other facts.”) Here, other competent facts exist which must be weighed, and in the case of the examiner, discussed and analyzed in the formation of a complete medical opinion. Giving the Veteran the benefit of any reasonable doubt, the Board finds that the Veteran has exhibited a continuity of symptomology beginning within a year from his separation from service. 38 C.F.R. § 3.303 (b). Competent evidence exists from both the Veteran and his brother that within a year of his separation from service he had back problems for which he was given a brace. Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159 (a) (a lay witness is competent to provide evidence about those matters for which he has personal knowledge). There was confirmed a diagnosis of existing back problems when the Veteran first sought treatment with the VA. Further the Veteran was granted service connection for the residuals of his claimed in-service TBI event. While the Board cannot say for sure the exact etiology of the Veteran’s back condition, we do find that there exists a continuity of symptomology after the Veteran separated from service. The Veteran has a current diagnosis of degenerative disk arthritis, beginning 2001, and arthritis is a condition for which the chronic condition provisions to establish service connection apply. The Veteran’s claim for entitlement to service connection for a back condition is granted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, 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.