Citation Nr: 21012577 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 12-08 635 DATE: March 4, 2021 ORDER Entitlement to service connection for degenerative disc disease (DDD) of the thoracic spine (claimed as residuals of a T-8 fracture) is granted. FINDING OF FACT 1. The Veteran’s T-8 fracture clearly and unmistakably preexisted active service. 2. The Veteran’s thoracic DDD manifested to a compensable degree within one year of service separation. CONCLUSION OF LAW The criteria for service connection for degenerative disc disease of the thoracic spine are met. 38 U.S.C. §§ 1112(a), 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1978 to June 1978. The appeal originates from an October 2008 decision of a Department of Veterans Affairs Regional Office (RO). In May 2017, the Court of Appeals for Veterans Claims vacated the March 2016 Board of Veterans’ Appeals (Board) denial of the above claim. The matter was then remanded by the Board pursuant to a joint motion for remand (JMR). Following the JMR, the Board remanded the matter in December 2017 and January 2020 for an adequate VA opinion to ensure compliance with the 2017 JMR. The matter has returned for adjudication. A personal hearing was conducted between the Veteran and undersigned in June 2015. A transcript is associated with the record. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran served for 90 days or more of active service, service incurrence is presumed for certain chronic diseases, including degenerative disc disease, if the disease manifested to a compensable degree within one year from the date of separation from active service. 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. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran is presumed to be in sound condition when entering service, except for conditions “noted” on entrance or where clear and unmistakable evidence demonstrates that an injury or disease preexisted service, and that the disease or injury was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established (such as the case here). See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (1) the condition preexisted service and (2) the preexisting condition was not aggravated by service. Wagner, 370 F3d. at 1345; Horn, 25 Vet. App. at 234. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470(1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). 1. Entitlement to service connection for residuals of a T-8 fracture, to include DDD. The Veteran asserts that he is entitled to service connection for a thoracic spine disability. Specifically, he maintains that a preexisting disability of the thoracic spine (a T-8 fracture) was aggravated by repeat in-service back injuries. See Board Hearing Transcript; see also January and October 2009 Correspondence. He states that the disability was relatively quiescent prior to service, that his symptoms increased in severity while he was in service, and that those symptoms never improved. As to current diagnosis, the record confirms the presence of a T-8 fracture and DDD of the thoracic spine. See August 2020 VA Examination Opinion. Regarding service, in relevant part, the record contains competent findings in and since service establish that the Veteran suffered a T-8 fracture prior to entering service. See May 1978 Medical Board Records; see also January and August 2020 VA Examination Opinions. The August 2020 opinion sets out a detailed analysis explaining why he believed the Veteran suffered a fracture of the T-8 in motor vehicle accident (MVA) that occurred prior to him entering service. The examiner stated that a T-8 fracture was consistent with a direct, focused, blunt force trauma that would result from an MVA. He added that such an injury would have been painful from the onset of the initial injury and continued to be painful during the Veteran’s active service. For those reasons, the examiner determined that there was clear and unmistakable evidence that the T-8 fracture and associated pain syndrome preexisted the Veteran’s entry into active service. Given the above competent findings, the Board finds that the Veteran’s T-8 fracture preexisted his service. There is likewise clear and unmistakable evidence that the preexisting T-8 fracture was not aggravated by service. This was also more than adequately addressed in the August 2020 VA opinion. In short, the examiner explained that the Veteran’s T-8 progressed to the DDD of the spine above and below the initial injured vertebra, which could take years to decades, and that any increase in severity during service would have been negligible and the result of the natural progression of the initial preexisting injury. Nevertheless, despite the determination that the Veteran’s T-8 fracture and associated pain syndrome preexisted his entry into active service, the competent medical evidence supports the award of service connection on a presumptive basis. Specifically, per the Court’s holding in Splane v. West, under 38 U.S.C. § 1112(a) presumptive service connection is applicable where a disability preexists service and manifests to a degree of 10 percent disability within a year after service separation. 216 F.3d 1058, 1067-69 (2000). The present case mirrors Splane. Here, an August 2020 VA examiner opined that the Veteran’s preexisting fracture developed into thoracic DDD within a year of service separation. The examiner specifically stated that it is reasonable to assume the DDD had its initial onset within a year of the Veteran’s discharge. The Veteran is also shown to have had the requisite service as he active service for more than 90-days. What remains is ascertaining whether the condition manifested to a degree of 10 percent, or more, within the year following separation. The Board finds it did. Although the claims file is negative for contemporaneous treatment records, it nevertheless contains the Veteran’s consistent lay assertions wherein he credibly and competently testified/reported experiencing severe pain localized to his thoracic spine since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77(Fed. Cir. 2007). Importantly, for spines, the presence of painful movement can warrant a 10 percent rating. As such, the Board finds the Veteran’s credible/competent reports sufficient evidence to establish his DDD manifested to a degree of at least 10 percent within the applicable presumptive period. In summary, and after affording all doubt in the favor the Veteran, the Board finds that the combined positive evidence of record establishes that the Veteran’s degenerative disc disease of the thoracic spine manifested to a degree of 10 percent disability within one year of his service separation. Such is sufficient to support the award of service connection for degenerative disc disease of the thoracic spine on a presumptive basis. The question of aggravation of the preexisting thoracic spine disability has essentially become moot. The benefit being sought, which is DDD of the thoracic spine, has been granted but just under a different theory of entitlement. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, 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.