Citation Nr: 21013272 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-64 017 DATE: March 9, 2021 ORDER Entitlement to service connection for chronic lumbar strain and degenerative arthritis of the lumbar spine is granted. FINDING OF FACT The Veteran’s chronic lumbar strain and degenerative arthritis of the lumbar spine are related to his service. CONCLUSION OF LAW The criteria for service connection for chronic lumbar strain and degenerative arthritis of the lumbar spine are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. (CONTINUED NEXT PAGE)   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1976 to August 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Previously, in a March 2019 decision the Board denied the Veteran’s claim for service connection. The Veteran then appealed the March 2019 decision to the Court of Appeals for Veterans Claims (CAVC). In a June 2020 decision, the Court held the Board failed to provide adequate reasons and bases in its March 2019 finding that the Veteran was not entitled to service connection. Specifically, the Court noted the Board failed to consider a lay statement and private treatment records provided by the Veteran in support of his claim. The Court set aside the Board’s March 2019 decision and remanded the matter for further development, if necessary, and readjudication. Entitlement to Service Connection for a Low Back Disability The Veteran contends his current lower back disability is etiologically related to an injury sustained during service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain diseases, to include arthritis may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309 (2018). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record establishes diagnoses of lumbosacral strain and degenerative arthritis of the spine. The first Shedden element, a current disability, has been met. As to the second element, service incurrence, service treatment records document multiple reports of treatment for a low back pain while on active service. In February 1977, the Veteran was diagnosed with a back strain after experiencing pain for two weeks. March 1979 treatment notes show recurrent back pain. Records from April 1979 show a muscle spasm in the lower back, lower back pain, and a decrease in the range of motion. July 1979 records reflect ongoing treatment for lower back pain with lower back exercises. The second Shedden element, an in-service injury, event, or disease has been met. The Board now turns to the question of nexus. In an August 2016 VA examination the examiner opined the Veteran’s current pain was less likely than not related to service based on the chart on file. The examiner noted that the Veteran’s radicular symptoms would not go quiet for 29 years or so and then suddenly appear, if it was bothersome to the Veteran this would have come up at least once or twice in those years. However, the 2016 examiner opined that “another documentation would be helpful” to arrive at the conclusion that the Veteran’s symptoms were related to his service. The Veteran provided a lay statement from his wife, who is noted to have been his spouse since 1977. The lay statement provides a history of the Veteran’s back symptomatology she witnessed since his active service. She notes the first time the Veteran was on bed rest was the result of a pinched nerve he suffered at Camp Roberts, a training facility in California. She recounts an episode where the Veteran was raking around the barracks when he “felt like he was hit by lightning that struck his lower back; went down his right leg and had to be carried away on a stretcher.” She recalls episodes occurring after the Veteran’s service including incidents where the Veteran collapsed while running in 1985 and 1992. More recently, she noted the Veteran suffered from lower back spasms and right leg numbness. According to her statement, the Veteran’s spasms increased in frequency between 2013 to 2016 up to four times a day. While the Veteran sought treatment which stopped the spasms, but the Veteran is now in continuous pain. As the Court noted in its July 2020 decision, the Veteran’s spouse does not purport to provide a medical opinion, but describes a recurrent pattern of observable symptoms during the intervening years since the Veteran’s service as a lay witness is competent and credible to do. Although she is not a medical professional and not qualified to make a diagnosis or comment regarding etiology, it is well-established that she can establish the presence of observable symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 303 (2007); Davidson v, Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board has also no cause to question the credibility of these statements. Her statement is consistent with the VA examiner’s opinion that the Veteran experienced multiple episodes of radicular symptoms between his separation from service and the claim. An August 2019 medical opinion from a VA physician links the Veteran’s current symptoms to his service. The physician expressed the opinion that Veteran first experienced L5 symptoms in 1976, his symptoms have persisted since the 1970s, and the Veteran’s current lumbar radiculopathy is more likely than not related to in-service injury. The Veteran’s 2016 VA examination noted more documentation would be helpful in establishing the Veteran’s current disability is related to his service. Lay statements and treatment records detail that the Veteran experienced low back and neurological symptoms in service and on a recurrent and continuous basis since that time. The August 2019 opinion tenuously links those symptoms to the Veteran’s current chronic lumbar strain and degenerative arthritis of the lumbar spine. Accordingly, and after resolving all doubt in the Veteran’s favor, the Board finds that service connection for chronic lumbar strain and degenerative arthritis of the lumbar spine is warranted. See Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.N. Bush, 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.