Citation Nr: 21021153 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 18-53 628 DATE: April 9, 2021 ORDER Entitlement to service connection for lumbosacral strain with multi-level degenerative joint disease and degenerative disc disease is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s currently diagnosed lumbar spine disability had its onset during service. CONCLUSION OF LAW The criteria to establish service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1962 to June 1964. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, FL. The Veteran testified before the undersigned Veteran’s law judge (VLJ) at an October 2019 videoconference hearing. The transcript has been associated with the electronic claims file By way of procedural background, in February 2020, the Board denied entitlement to service connection for lumbosacral strain with multi-level degenerative joint disease and degenerative disc disease. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court) and, in November 2020, the Court issued an Order that granted a Joint Motion for Remand (JMR) which vacated the Board’s decision as to the issue of entitlement service connection for lumbosacral strain with multi-level degenerative joint disease and degenerative disc disease. The Court returned this issue to the Board for appropriate action. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. §20.900 (c) (2012). 38 U.S.C. § 7107 (a)(2) (2019). Entitlement to service connection for lumbosacral strain with multi-level degenerative joint disease and degenerative disc disease Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2019) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Initially, the Board finds that the Veteran is currently diagnosed with lumbosacral spine multilevel degenerative disc disease (DD) and degenerative joint disease (DJD). See July 2017 VA Examination Report. The Veteran maintains that his lumbar spine disorder first manifested in service and was incurred in service. Specifically, the Veteran has reported that his current back pain is related to falling out of a truck during service in November 1963. See October 2019 Hearing Transcript. The Veteran has also stated that he sought treatment for his back post-service as early as 1966. Id. Service treatment records (STRs) confirm that the Veteran was involved in a truck accident, requiring two stitches on his scalp. See November 1963 STR. The Veteran’s STRs also include complaints and treatment for low back pain after the truck accident. See e. g., April 1964 STR (Veteran reported low back pain while lifting a heavy can of paint and was diagnosed with muscle spasm and acute back strain). The Board finds that the Veteran has competently and credibly indicated that he first experienced back pain in service, which continued following service separation. The Board finds that the Veteran is competent to report symptoms that he perceived through his own senses, including the presence of back pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, the Veteran’s contentions are consistent with the circumstances, conditions and hardships of that service, including the November 1963 truck accident. The Board further finds that the VA medical opinion obtained in July 2017 is inadequate. In this regard, the examiner stated that the Veteran’s lumbar spine disorder was not related to service because the medical literature does not support that sporadic episodes of acute lumbar strain, such as what the Veteran experienced in 1964, cause or result in spine DJD or DDD. The Board notes that the VA examiner failed to discuss the Veteran’s November 1963 truck accident in any aspect. The examination report also contained contradictory information, with the examiner noting multilevel lumbar spine DJD/DDD developed in 1990s while also stating that the Veteran’s medical records do not document lower back concerns from him until 2017. The opinion therefore is accorded low probative value. Based on the above, the Board finds that the evidence is at least in equipoise on the question of whether there was onset of symptoms of a lumbar spine disorder in service and since service separation. The finding that the Veteran has had low back symptoms since service is supportive of the direct service connection theory of the claim overall because it tends to show that the symptoms that began in service were the basis for the same symptoms after service separation. For these reasons, and after resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s lumbosacral strain with multi-level degenerative joint disease and degenerative disc disease first manifested in service and was incurred in service. As such, service connection is warranted. 38 C.F.R. § 3.102. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, 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.