Citation Nr: 21021472 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 18-40 480 DATE: April 13, 2021 ORDER Service connection for a low back disability is granted. FINDING OF FACT The Veteran’s low back disability is related to service. CONCLUSION OF LAW The criteria to establish service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1961 to December 1964. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2016 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in March 2021. A transcript is of record. The Veteran seeks service connection for a low back disability. During his March 2021 hearing he described two motor vehicle accidents during service and subsequent back symptoms that continued during and since service. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran 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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service incurrence or aggravation of arthritis may be presumed to have been incurred or aggravated if the disability is manifested to a compensable degree within one year of the Veteran’s discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. A decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In a May 2016 statement, the Veteran related that he had sustained injuries to his back during service. He described a motor vehicle accident while driving a military Jeep at Fort Hood. He indicated that as he drove the open Jeep, he struck a vehicle from behind. He also described an accident in Germany, where he slid down a snow covered hill while driving an open Jeep. He noted that he injured his back attempting to keep the Jeep from flipping. He indicated that, in both instances, he reported the accidents to his First Sergeant. He stated that he chose not to seek medical treatment at the time of his injuries because he feared that such would have an adverse impact on his chances for promotion. He also indicated that he had witnessed soldiers being ridiculed for going to sick call, and as the smallest man in his company, he feared being intimidated by others. He stated that he had experienced back pain during service and in the years since. He described various modes of treatment he had sought during that time. The medical evidence of record includes a November 2016 statement by R.F., M.D., a private orthopedist. Dr. R.F. indicated that imaging studies documented multilevel lumbar degenerative disc disease with prominent disc herniation at L4-5, lumbar spondylosis at several levels, facet joint enlargement, and arthropathy. He noted that the Veteran had described two motor vehicle accidents during service, and subsequent low back pain following each incident. Specifically, he noted that while in a Jeep at Fort Hood, the Veteran struck another vehicle from the rear. He also noted the Veteran’s report of losing control of a vehicle on a snow covered hill, sliding down the hill sideways and resulting in injuries to his low back. He opined that the symptoms that the Veteran presented with were related to the accidents during service. He acknowledged that the Veteran did not seek treatment during service, and contemporaneous documentation of the injuries did not exist. Nevertheless, he concluded that it was reasonable to establish a connection between the injuries and the Veteran’s present condition. During his March 2021 hearing, the Veteran provided a detailed description of the in-service incidents he had previously reported. He indicated that he first sought treatment for low back pain shortly following separation from service. Having carefully reviewed the record, the Board has determined that service connection for the Veteran’s low back disability is warranted. In reaching this conclusion, the Board notes that the Veteran has been consistent in his reports of motor vehicle accidents during service, and the Board finds him credible in that regard. Moreover, Dr. R.F., the Veteran’s treating physician, reviewed the Veteran’s history and determined that the Veteran’s current low back disability is related to the accidents during service. In consideration of the above, the Board has carefully considered the evidence, and finds that there is at least an approximate balance of evidence with respect to the question of whether the Veteran’s current low back disability is related to service. Therefore, having resolved doubt in favor of the Veteran, service connection for the Veteran’s low back disability is granted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.