Citation Nr: 21012377 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 18-05 557 DATE: March 4, 2021 ORDER Entitlement to service connection for a low back disability (described as degenerative arthritis) is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, her low back disability was incurred during active military service and is etiologically related to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from August 1999 to June 2005. The Veteran also had over two years of foreign service including service in Iraq. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veteran Law Judge (VLJ) in September 2018. A transcript of the hearing is associated with the claims file. In April 2019, and October 2020, the Board remanded this claim for development. Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specified chronic diseases when shown in service with subsequent manifestations at a later date, however remote, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.307. Some chronic diseases are subject to presumptive service connection, although, not otherwise established as incurred or aggravated by service if manifest to a compensable degree, within an applicable time limit, provided that the rebuttable presumptive provisions of § 3.307 are also satisfied. See also 38 C.F.R. §§ 3.303, 3.309. Alternatively, to show a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 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). The Veteran contends that her low back pain began during active service and has continued ever since. First, the Veteran’s records support that she has a current disability. In April 2010, the Veteran had imaging of her spine for right sided low back pain radiating into the thigh. The imaging found an L5 to S1 protrusion. See Medical Treatment Record- Government Facility received February 2017. Then in April 2017, the Veteran had imaging showing that she had mild degenerative changes of the lumbar spine. See C&P Exam received December 2017. Additionally, in September 2019, a VA examiner completed a Back Conditions Disability Benefits Questionnaire (DBQ). The examiner noted that the Veteran was diagnosed with degenerative arthritis of the spine. See C&P Exam received September 2019. Second, the evidence supports a finding of an in-service event, injury, or disease. First the Veteran testified that she has had ongoing symptoms of low back pain since service. See Hearing Transcript received September 2018. The Veteran’s records document treatment for low back pain during service. For example, in September 2001, the Veteran reported sharp, lower back pain that tingles around her right side. See STR-Medical received June 2005. The Veteran reported post deployment that she had back pain during her deployment. Id. In January 2005, the Veteran was driving a forklift and was hit by a car. About a week later the Veteran reported low back pain for over a week. Id. The board finds that the Veteran’s treatment in service supports her lay statements. Moreover, at separation from service, the Veteran reported chronic and intermittent low back pain during service. See STR-Medical received June 2005. The Veteran also submitted other buddy lay statements which supported that the Veteran had back problems during service, and thereafter. See Buddy/ Lay Statements received January 2018. The Board accepts the Veteran’s lay statements, other lay statements, and the evidence of treatment in service established competent evidence of an in-service event, injury, or disease. Lastly, the Board finds that the Veteran competently and credibly reported chronic, continuous low back pain since service. The nature, onset, and course of her low back pain are capable of being identified by the Veteran as a lay witness. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A review of the Veteran’s medical records supports her statements that she has had ongoing low back pain since service. Within five years of separation from service, the Veteran’s records documented that she had treatment for low back pain while in Italy. The Veteran explained that her husband was stationed there, and she went to see an orthopedic doctor after complaining of low back pain, as well as hip pain, which is already service connected. See Hearing Transcript received September 2018, VA 21-4138, Statement in Support of Claim received June 2020. The Veteran had a magnetic resonance imaging, (MRI), of her lumbar spine while in Vicenza, Italy in April 2010. See Medical Treatment Record-Government Facility received February 2017. The Veteran also had treatment from November 2011, which stated that the Veteran’s problems included lumbosacral disc degeneration, herniated disc degeneration at L5 to S1, and lower back pain. Id. In June 2013, the Veteran told her doctor, for radiation treatment post mastectomy, that she had a history of chronic low back pain. See Medical Treatment Record- Non-Government Facility received July 2016. Other records from around that time also documented that the Veteran had taken pain medication intermittently for low back pain. Id. In December 2014, the Veteran reported back pain and the examination noted mild numbness in her toes. See Medical Treatment Record- Non-Government Facility received July 2016. In November 2016, the Veteran had a VA examination. She reported that her back pain started in service. The Veteran did not recall a single incident but remembered having acute back pain after carrying a large oil can. She reported receiving some shots in her low back for pain. She stated her back would lock up while going up stairs. She also stated that her back pain radiated to the right side. See C&P Exam received November 2016. On examination, the Veteran had decreased sensation to her right knee and ankle. She had normal strength and reflexes. The examiner reviewed some x-ray imaging of her back, which appeared to be normal. According to the report, the MRI of the Veteran’s back was not reviewed or considered by the examiner. The examiner found that the Veteran did not have a back diagnosis or current disability. Id. This VA examiner’s negative nexus opinion was deemed inadequate because it failed to consider evidence, in the records, showing that the Veteran had a current disability. In April 2017, the Veteran had imaging showing chronic changes in her lumbar spine including osteophyte formation at the L5 to S1 and L1 to L2 levels. See Medical Treatment Records – Government facility received April 2017. In June 2017, the Veteran had another VA examination. The Veteran reported that she had chronic, intermittent, low back pain. See C&P Exam received June 2017. The examiner diagnosed the Veteran with intermittent, non-disabling, mild lumbar strain. The Veteran had abnormal range of motion on examination. Id. This examiner provided a negative nexus opinion. However, this opinion was also inadequate because it suggested that the Veteran had no treatment for her back in a decade, which is factually inaccurate, and the opinion failed to consider lay statements. Then in September 2019, the Veteran had another VA examination, which the Board considered inadequate because the opinion did not consider whether there was any worsening regardless of its permanence. See BVA decision dated October 2020. The Board also notes that the examiner opined as to direct service connection, that the claimed condition was less likely then not incurred in or caused by the claimed in service injury, event, or illness. The rationale stated that during service the Veteran’s lumbar spine condition was acute only and there was no evidence of chronicity of care. See C&P Exam received September 2019. However, the same examiner stated in a secondary service connection opinion, that the Veteran was a reliable historian, and denied secondary service connection for a low back disability because for example, the Veteran's breast cancer occurred after her back disability which the Veteran reported began in the year 2000. The examiner also denied any aggravation of the Veteran’s back disability, by stating again that the Veteran was considered a reliable historian and reports that “over the years her lower back pain has remained the same.” Id. The Board finds it unclear how the Veteran was believed a reliable historian but the Veteran’s statements that she had ongoing, chronic, back pain since service were not considered relevant to direct service connection. (Continued on the next page)   In December 2020, the Board attempted to obtain another VA medical opinion. The examiner found that the Veteran’s mild lumbar strain was less likely than not incurred in or caused by active duty service, or otherwise related to service. However, the examiner noted that the records show that the Veteran has had intermittent episodes of back pain over the years and that the Veteran had acute episodes of low back pain during service as well as while deployed. The examiner stated that the Veteran’s post service records were scant, yet the examiner noted that records from post service documented that the Veteran had back pain. The doctor also noted the Veteran’s pregnancy and weight gain were more likely causes of the Veteran’s exacerbated back pain. However, the Veteran was pregnant when she separated from service and had also gained some weight. Moreover, even if the Veteran’s back pain was exacerbated by these causes, it does not mean that the Veteran’s back pain did not begin in service. For example the opinion does not provide a reasonable rationale as to why, if the records shows intermittent episodes of back pain over the years, which the examiner stated, and the Veteran has reported ongoing and chronic back pain since service, it is not incurred in or related to service. However, the Board does not need to reach the weight assignable to any medical opinion because service connection may be granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the “chronic” disease of arthritis, described as degenerative disease in the low back, based on a finding of a continuity of chronic back pain symptoms since service. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.