Citation Nr: 21010992 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 14-36 325 DATE: February 26, 2021 ORDER Entitlement to service connection for a back condition is granted. FINDING OF FACT The Veteran’s back condition had its onset during his active service and has continued since then. CONCLUSION OF LAW The criteria for entitlement to service connection for a back condition have been met. 38 U.S.C. §§ 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from August 1975 to August 1979. In May 2018, the Board of Veterans’ Appeals (Board) remanded the issue of entitlement to service connection for a back condition for further development. Specifically, the Board instructed the regional office (RO) to obtain compete service personnel records, as well as any missing medical records. Back condition The Veteran contends his back condition began while he was in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1101, 1131; 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). As an alternative to the nexus requirement, service connection for a chronic disability, such as arthritis (to include degenerative disc disease), may be established through a showing of continuity of symptomatology since service. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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 (1990). First, the evidence demonstrates a current disability. Specifically, the Veteran has been diagnosed with degenerative arthritis of the spine from February 2011, as well as intervertebral disc syndrome and spinal stenosis from December 2015. See September 2019 C&P Exam. Accordingly, the Board finds that the first element of service connection is established. See Shedden, 381 F.3d at 1166-67. Next, the Veteran’s service treatment records (STRs) show that the Veteran began experiencing back problems in October 1976 and was diagnosed with sacroiliac joint displacement, and that he complained of continued back pain at a follow-up appointment in service. See August 2011 STR – Medical, pp. 36 & 38. Thus, the second element of service connection is also established. See id. The remaining question is whether there is a medical nexus between the Veteran’s currently diagnosed back condition and his service. As to this matter, the evidence conflicts. In September 2011, the Veteran appeared for a VA examination, in which the examiner diagnosed the Veteran with degenerative joint disease of the lumbar spine and lumbar spondylosis. The examiner opined the Veteran’s back condition was less likely than not related to his service because service records did not show objective findings consistent with a high energy injury to the Veteran’s back. Furthermore, the examiner reasoned that the “[V]eteran was active duty for less than 10 years[, t]hus, any microtrauma the Veteran sustained [ ] during active duty, even in aggregate, would be insufficient to initiate and sustain[] a posttraumatic process, since the literature suggests a 10[-]year exposure as the threshold value.” The Veteran submitted a February 2012 private opinion, provided by Dr. T.P.T., in which the doctor noted chronic degenerative disc and back disease from examination of the Veteran. Dr. T.P.T. opined that the Veteran was misdiagnosed in his initial injury and that the back injury suffered by the Veteran while in service turned into a degenerative process and resulted in the Veteran’s present permanent impairment of his lumbar spine. The Veteran underwent a VA examination in September 2019, in which the Veteran reported he developed acute low back pain after a parachute jump with a hard landing during service and that he has experienced constant low back pain and intermittent numbness of the bilateral lower extremity thereafter. The September 2019 examiner opined that the Veteran’s back condition was less likely than not incurred in or caused by injury during service. In support of her opinion, she noted that the Veteran was diagnosed with a back condition in October 1976, but the Veteran did not have any more complaints in service, and that the first post-service diagnosis was in February 2011. Furthermore, the examiner acknowledged Dr. T.P.T.’s February 2012 opinion but explained that imaging is an imperfect science. The examiner also acknowledged the Veteran’s ex-spouse’s statement, which the examiner found did not provide any specifics to support the Veteran’s claim of injury. Therefore, the examiner concluded that the gap in care did not support the Veteran’s claim of continuity. An addendum opinion was associated with the Veteran’s claim file in March 2020. The March 2020 examiner noted a December 1993 treatment note that showed lower back pain and a December 2004 lumbar spine x-ray that reflect upper lumbar degenerative disc disease but concluded that there was still a 13-year gap post-service from when the Veteran complained of low back pain in December 1993. Another private opinion, provided by a chiropractor, was associated with the Veteran’s claims file in May 2020. She noted that the Veteran has lower back pain that has been ongoing for years, and is related to a past injury he suffered. The Veteran has provided several competent and credible lay statements that support a finding of continuity of symptomatology. First, the Veteran has reported that he injured his back from jumping out of a helicopter in October 1976 and has continued to have back problems since then. See April 2018 Correspondence. He also reported in a November 2017 treatment note that he has had back pain since 1976 but kept quiet during his service due to fear of losing his position. See July 2019 CAPRI, p. 313. The Veteran also provided authorization for his private medical records; unfortunately, one physician was no longer practicing and another medical facility only retained records for up to seven years, which resulted in the destruction of the Veteran’s medical records. See July 2019 VA 21-0820 Report of General Information; July 2019 VA 21-0820 Report of General Information. The Veteran also submitted statements from his ex-spouse, as well as fellow servicemembers who served with the Veteran in April 2018. His ex-spouse asserted in a February 2012 statement that the Veteran injured his back while in service and confirmed that the Veteran had severe back problems since the beginning of their relationship in 1977. J.C.U. provided that the Veteran was in need of medical attention due to an injury in his lower back in the fall of 1977 and received authorization to send the Veteran to Germany for evaluation and consultation. Furthermore, he stated that the Veteran “worked through a lot of pain” in service. The Board finds the September 2011, September 2019, and March 2020 opinions to be inadequate and of minimal probative value. First, the September 2011 examiner was unable to address the Veteran’s contention that his back condition began after jumping out of a helicopter in service. Second, the September 2019 and March 2020 examiners’ rationale for negative nexus opinions was based solely on the gap of time between the Veteran’s separation from service and the diagnosis of a back condition. Though the September 2019 examiner acknowledged Dr. T.P.T.’s February 2012 private opinion and the lay statement from the Veteran’s ex-spouse, the examiner incorrectly noted that the Veteran did not seek treatment until 2011 when evidence reflects that the Veteran complained of back pain in December 1993 and that some of the Veteran’s medical records were unavailable or destroyed. See July 2011 Medical Treatment Record – Non-Government Facility, p. 3; February 2019 Medical Treatment Record – Non-Government Facility, p. 6; July 2019 VA 21-0820 Report of General Information; July 2019 VA 21-0820 Report of General Information. Importantly, the examiners failed to recognize that it is symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 496 (1997). After careful review of the record, the Board finds that the positive evidence outweighs the negative evidence with respect to whether the Veteran’s back condition was incurred in service and that he continued to experience back problems since he separated from service. As discussed above, there is objective evidence indicating that the Veteran was treated in service for back pain. There is also credible evidence that the Veteran has continued to have problems and seek treatment for his back condition since exiting service. In short, the Veteran’s competent lay statements, the lay statements from his ex-spouse and fellow servicemembers, as well as private medical opinions, coupled with the objective symptomatology noted in service, establishes continuity of symptomatology since service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay evidence may provide sufficient support for a claim of service connection). Based on the above, the Board finds that the preponderance of the evidence supports the Veteran’s claim, and the Board resolves all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for a back condition will be granted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. L. Park, 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.