Citation Nr: 21012674 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 19-32 594 DATE: March 4, 2021 ORDER Service connection for lumbar spondylosis and sacroiliac weakness (diagnosed as degenerative arthritis of the spine) is granted. FINDING OF FACT The Veteran’s back condition was noted in service and he has complained of the symptoms ever since service. CONCLUSION OF LAW The criteria for service connection for degenerative arthritis of the spine have been met. 38 U.S.C. § 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1961 to November 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in his October 2019 substantive appeal (VA Form 9), the Veteran requested a Travel Board hearing. In June 2020 correspondence, the Veteran, by way of his attorney, withdrew his request for a hearing and instead requested the record remain open for 90 days for the submission of additional evidence. Therefore, the Board finds the Veteran’s request for a hearing to be withdrawn. 38 C.F.R. § 20.702 (d). This matter has been advanced on the docket. 38 C.F.R. § 20.902. Service connection for lumbar spondylosis and sacroiliac weakness (diagnosed as degenerative arthritis of the spine) is granted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 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). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) 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; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran’s degenerative arthritis of the spine was not shown as chronic (reliably diagnosed) in service or within a presumptive period, and did not manifest to a compensable degree within a presumptive period. It was; however, noted in service, and there is continuity of symptomatology since service that is attributable to the Veteran’s back condition. The Veteran has a current diagnosis of degenerative arthritis of the spine. Although no treatment records exist from during the applicable presumptive period, the Board finds that the Veteran continued to experience the same symptoms from the time of his in-service injury, resulting from consistently moving 55-gallon drums of silt as a Generator Operator. The Veteran is competent to report that he experienced symptoms of back pain during that period, but did not seek treatment until 2010. His testimony is credible and entitled to probative weight, as it is consistent with other evidence of record, to include the July 2019 buddy statement from the Veteran’s wife reporting that he has complained of back pain for 53 years. (Continued on the next page)   The Board acknowledges the December 2018 and September 2019 VA opinions which both opined that the Veteran’s degenerative arthritis of the spine is less likely than not incurred in or caused by an in-service injury. The December 2018 VA opinion rationalized that the Veteran was seen twice for the same lumbar spine injury while in service, with no further STRs indicating a back condition, and the earliest medical record regarding a lumbar spine condition being from October 2013, 50 years after his service injury. This opinion is inadequate because it is based on an inaccurate factual basis. The record reveals private treatment records from early 2010 that show complaint and treatment for back pain. Further, the examiner failed to address the Veteran’s contention that he has experienced back pain since his in-service injury. Similarly, the September 2019 opinion failed to consider and discuss the Veteran’s competent lay statement that he experienced chronic back pain during and since active service; instead, the examiner seems to have relied on the Veteran’s lack of post-service treatment. Thus, resolving all reasonable doubt in favor of the Veteran, continuity of symptomology for a chronic disease has been shown, service connection for degenerative arthritis of the spine is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.