Citation Nr: 21014611 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-07 831 DATE: March 15, 2021 ORDER Service connection for a back disability is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the current back disability had its onset during or is otherwise related to the Veteran’s period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability are 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 September 1986 to September 1990, November 2011 to December 2012, and October 2016 to September 2018, with additional service in the Navy Reserve and Army National Guard. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case for further development in November 2018 and May 2020. The Veteran contends that his chronic back pain commenced after an injury in December 2011. 10/20/2014, NOD. Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation while in active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time or where clear and unmistakable evidence or medical judgment establishes that an injury or disease preexisted service. 38 U.S.C. § 1111, 38 C.F.R. § 3.304(b). When no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). If the presumption of soundness attaches, the burden falls on the government to rebut the presumption by clear and unmistakable evidence that a disorder was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. The record demonstrates that the criteria for service connection for a back disability are met. The Veteran has a current diagnosis of a lumbosacral strain, degenerative disc disease, degenerative arthritis of the spine, intervertebral disc syndrome, and spinal stenosis. 10/25/2019, C&P Exam; 04/20/2018, C&P Exam; 09/30/2014, C&P Exam. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Veteran’s DD Form 214 shows that the Veteran had active service from November 2011 to December 2012. Post-service treatment records dated January 2013 show that the Veteran’s degenerative disc disease manifested to a compensable degree within the applicable presumptive period. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Low back pain was noted in the Veteran’s July 1990 separation examination. 03/06/2014, STR–Medical – Photocopy. The Veteran’s November 2011 pre-deployment health assessment notes his general health as “good.” Continuous treatment for chronic back pain is not shown until December 2011. 03/14/2018, STR. In April 2015, the Veteran expressed concern with re-deployment given his active service-related injuries, particularly his knee problems. 10/19/2018, STR. The Veteran is presumed to have been sound upon his November 2011 re-entrance to service, but not sound at his October 2016 re-entrance. See Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. A VA examiner opined in September 2014, November 2015, and August 2020 that the current back disability was less likely than not incurred in or caused by the claimed in-service injury because the injury was consistent with an acute back strain and not evidence of degenerative disc disease. The examiner found degenerative disc disease typically a natural result of wear-and-tear with aging and therefore is most likely not caused by or a progression of the Veteran’s acute occurrence of lumbar back strain in service or aggravated by his re-entry into active duty from October 2016 to September 2018. See 08/04/2020, C&P Exam; 11/10/2015, C&P Exam; 09/30/2014, C&P Exam. In August 2020, the examiner also opined the back disability was not cause or aggravated by the Veteran’s service-connected knee disabilities. 08/04/2020, C&P Exam. An April 2018 VA examiner did not provide an opinion as to the etiology of the Veteran’s back disability because he found no pathology to render a diagnosis. 04/20/2018, C&P Exam. The October 2019 VA examiner did not provide an opinion as to the etiology of the Veteran’s back disability but diagnosed degenerative arthritis of the spine and intervertebral disc syndrome and noted the 2013 diagnosis of spinal stenosis, a symptom of arthritis. 10/25/2019, C&P Exam. As a chronic condition, any subsequent manifestations of the back disability are service connected unless attributable to intercurrent causes. No intercurrent causes have been shown in this case. Any doubt on the material issue of nexus is resolved (Continued on next page) in the Veteran’s favor, and the claim of service connection for a back disability is granted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.