Citation Nr: 21011601 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 19-35 750 DATE: March 2, 2021 ORDER Entitlement to service connection for degenerative arthritis of the spine is granted. FINDING OF FACT The preponderance of the evidence shows the Veteran’s degenerative arthritis of the spine manifested while in service and has continued to the present. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative arthritis of the spine have been met. 38 U.S.C. § 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1964 to January 1967. He had an additional two years and three months of active service. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision dated January 2019 issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed. The appellant testified at a February 2021 video hearing with the undersigned Veterans Law Judge. This decision is being made under the “one-touch” program as it grants the benefit sought. A transcript of the hearing will be associated with the claims file at a later time. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for degenerative arthritis of the spine The Veteran [contends/asserts] that [insert contentions here]. Alternatively, [s/he] contends that [insert alternative contentions here]. Certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of degenerative arthritis of the spine. See VA Examination dated January 2019. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Service treatment records show the Veteran injured his back while in service. A December 15, 1965 service treatment record (STR) noted that the Veteran had been in an automobile accident earlier that evening. He had suffered extreme injuries to the neck and back. He had tenderness in the lumbar and was treated with Robaxin. The Veteran was admitted to the hospital on February 2, 1966 after a 10 foot jump the night before, which caused an immediate onset of severe low back pain in the lumbosacral area. A February 4, 1966 STR noted physical findings at that time revealed severe tenderness in the lumbosacral area. He was hospitalized, placed on bedrest, and given an ice massage and muscle relaxants. Two days after admission, the Veteran was pain free, had full range of motion of the back and no limitations. His X-rays were within normal limits. The final diagnosis was strain of low back area, simple. It was noted that he could not crawl, stoop, run, jump, stand for prolonged periods of time, or march. He was also not allowed to do parachute jumps or lift weights in excess of 20 pounds. A July 15, 1966 STR documented a whiplash injury due to an automobile accident two days prior. Scans showed no significant abnormality. Following separation from service, the Veteran reported, “I injured my back during a training exercise in 1966 (to the best of my knowledge). I continue to have low back pain. From time to time the low back pain will not allow me to stand straight or walk without having to favor one side or the other.” See December 2018 statement. The Veteran submitted a statement in his November 2019 Form 9, which provided, I sustained two back injuries during my military service. One on December 15, 1965 and one on February 2, 1966. I continued to have lower back pain during the remainder of my time in the military. The lower back pain continues every day…I started receiving treatment for my back pain from Dr. [P. T.] of the “Medical Group” in Memphis, Tennessee in 1967 and continue. The “Medical Group” did not retain my early records and Dr. [P. T.] is deceased. While the records from Dr. P.T. are unavailable, the Veteran reported onset of degenerative disc disease when he was in his twenties and that he received treatment for his back for 15 years following service. He received steroid shots and Valium for the pain. He later began taking Aleve, which he has continued taking to this day. While no treatment records exist from during the applicable presumptive period, the Board finds that the Veteran continued to experience the same symptoms from service to the present. The Veteran is competent and credible to report the treatment and diagnosis he received in his twenties shortly after separating from service and that he has experienced chronic back pain from the time of his in-service injuries to the present. In this case, the Veteran’s reported histories of consistent back problems are internally consistent, credible and supported by the STRs. The Veteran has credibly and competently reported that his back disability began while he was in service and has continued to the present. The Veteran underwent a VA examination in January 2019. The Veteran reported that since his discharge from service, he had experienced chronic pain in his back. He had been following up with the Medical Group. He noted that he had been treated with oral pain medications and injections. The VA examiner concluded that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She wrote, During service, condition of low back pain was acute only. On December 15, 1965 records show the Veteran was involved in a [motor vehicle accident] on December 10, 1965 that caused lumbar tenderness, he was treated with Robaxin. On February 4, 1966, the Veteran suffered a low back strain as a result of a jump from a 10 foot height. The condition was treated with muscle relaxers, ice, and bed rest, X-rays were normal. There is no evidence of chronicity of care following this event in recent time following service. Low back pain is not evident again until records dated September 20, 2005. The current diagnosis of degenerative arthritis of the lumbar spine is thought to be a normal physiological progress associated with aging. A nexus has not been established. However, this nexus opinion does not consider the Veteran’s lay evidence of treatment for his back from 1967 forward or the profiles the Veteran had while he was in service. Furthermore, the VA examiner’s statement that there is no evidence of a back disability until 2005 is inconsistent with the Veteran’s lay evidence. The Veteran credibly reported that he is unable to obtain private treatment records dated shortly after service because his treating physician died and the practice where he was being treated immediately after service is now out of business. As the opinion of the January 2019 VA examiner is based on inaccurate facts, the Board finds that it is not probative. The Board finds that the competent and credible lay evidence establishes continuity of symptomatology for arthritis of the back and service connection is granted under 38 C.F.R. § 3.303(b). LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor 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.