Citation Nr: 21021636 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-18 555 DATE: April 13, 2021 ORDER Service connection for arthritis of the lumbar spine is granted. FINDINGS OF FACT 1. The Veteran is currently diagnosed with arthritis of the lumbar spine. 2. During service the Veteran injured the back lifting a heavy missile component. 3. The Veteran experienced “chronic” symptoms during service and “continuous” symptoms since service separation of arthritis of the lumbar spine. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for presumptive service connection for arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service from January 1964 to January 1968. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The instant matter was previously before the Board in May 2019 and December 2020, where the remaining issue on appeal was remanded for additional development. The Board notes that the VA medical opinion obtained in February 2021 failed to address all of the Board’s remand directives. Nonetheless, as the instant decision grants service connection for arthritis of the lumbar spine, which is a complete grant as to the remaining issue on appeal, the Board finds there is no prejudice to the Veteran in deciding the instant matter at this time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for arthritis of the lumbar spine, no further discussion of VA’s duties to notify and assist is necessary. The Board notes that the Veteran’s request for an extension of time to submit additional evidence in this appeal was granted for 30 days in an April 2021 letter. However, as the Board’s instant decision fully grants the issue on appeal, there is no further need for additional evidence to substantiate the claim. Service Connection for a Back Disability Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Arthritis is a chronic disease under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable to the question of service connection for a back disability. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as “chronic” in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served 90 days or more of active service, and a chronic disease become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1133, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The Veteran asserts that a currently diagnosed back disability is related to an in service lifting injury. It is the Veteran’s contention that symptoms of a back disability have continued from service separation to the present. Initially, the Board finds that the Veteran is currently diagnosed with arthritis of the lumbar spine. Such diagnosis can be found throughout the record, in various VA and private treatment (medical) records. Further, per the report from a July 2020 VA back examination, X-ray imaging showed arthritis of the lumbar spine. Next, the Board finds that during service the Veteran injured the back lifting a heavy missile component. Throughout the course of this appeal the Veteran has advanced injuring the back during service while lifting a heavy missile component. Such an injury is consistent with the Veteran’s in-service responsibilities as a missile mechanic. While service treatment records are negative for any diagnosis or treatment of a back injury during service, per a December 2013 lay statement, the Veteran explained that he did not seek treatment during service because he assumed that sick call would merely prescribe pain killers to treat the back pain. Finally, having reviewed all the evidence of record, lay and medical, the Board finds that the weight of the evidence is at least in equipoise on the question of whether the Veteran experienced “chronic” symptoms during service and/or “continuous” symptoms since service separation of arthritis of the lumbar spine to meet the requirements for presumptive service connection for the chronic disease of arthritis. See 38 C.F.R. § 3.303(b). In a December 2013 lay statement, the Veteran explained that responsibilities as a missile mechanic regularly required awkward and heavy lifting. The Veteran conveyed regularly experiencing low back pain. As the Veteran was assigned to a two man team, when the pain was particularly bad the secondary crew member would do most of the heavy lifting. Following separation from service, the Veteran sought employment with a foundry. Upon pre-employment back X-rays being taken, the Veteran was disqualified from foundry work due to a diagnosed back disability. Subsequently, the Veteran had to find a job that did not require a back X-ray, and he spent the rest of his years self-medicating and managing the back disability symptoms. Per the September 2014 notice of disagreement (NOD), the Veteran conveyed having a bad back “throughout my post Air Force life.” A December 2014 private treatment record reports that the Veteran sought treatment for low back pain that first manifested during service in 1967. Per the Veteran, the back popped when installing an accessory power unit into a missile. In a June 2019 lay statement, it was reiterated that the Veteran lost a job offer within six-to-eight months of service following a back X-ray. Per a June 2019 informational letter, the medical center at which the 1968 X-ray was taken informed the Veteran that the X-ray and corresponding medical records had been destroyed and were no longer available. The Veteran received a VA back examination in July 2020. At that time, the Veteran reiterated injuring the back during service and having pain following the injury. Upon separating from service and seeking employment with a foundry, the pre employment back X-ray showed a back disability and disqualified the Veteran from the job. The Veteran was referred for treatment and was informed he had a “bad back.” Upon learning of the back disability, the Veteran worked as a pattern maker apprentice, which did not require significant lifting. The Veteran conveyed receiving additional back treatment in the 1970s. Further, the Veteran advanced that, since the initial in-service back injury, the back disability symptoms had progressively worsened. As will be discussed in greater detail below, during the course of this appeal the Veteran has been diagnosed with multiple back disabilities, including Bertolotti’s syndrome, which is congenital in nature. In rendering a negative direct service connection opinion, the VA examiner noted that the abnormal back finding identified on the 1968 post-service employment X-ray was likely the Veteran’s congenital back disability. The Board notes that in its December 2020 Remand, the Board found the July 2020 VA medical opinion to be inadequate, and remanded to obtain a new VA medical opinion, to include on the question of whether the Veteran’s Bertolotti’s syndrome was a congenital defect or disease. Unfortunately, review of the subsequently received February 2021 VA back opinion reflects that the requested congenital defect/disease opinion was not rendered by the VA examiner. Nonetheless, the VA examiner in July 2020 appears to have accepted as fact that the Veteran had an abnormal back X-ray in 1968 that precluded the Veteran from employment at a foundry. For the VA examiner to have made such a finding, the evidence of record must support that the Veteran had back disability symptoms at or near the time of service separation. As discussed above, the 1968 back X-ray records have been destroyed; therefore, it is unknown whether the 1968 X-rays truly showed a congenital back disability, as opined by the VA examiner in July 2020, or whether the X-rays showed an injury-related back disability. Due to the unavailability of the Veteran’s 1968 back X-ray records, and considering the Veteran’s credible lay statements concerning an in-service lifting injury and back pain symptoms during and since service separation, the Board will resolve reasonable doubt in favor of the Veteran to find that the post-service 1968 X rays that disqualified the Veteran from foundry work showed an injury-related back disability, as opposed to a congenital back disability. The Veteran is currently diagnosed with arthritis of the lumbar spine. Throughout the course of this appeal, in various lay statements and medical records, the Veteran has credibly advanced injuring the back while lifting heavy missile components performing his job as a missile mechanic, and that back disability symptoms have been present and progressively worsened from service separation to the present. The Veteran has also credibly conveyed being denied work at a foundry in 1968, within a year of service separation, due to an abnormal back X ray. Due to these X-ray records having been destroyed, and considering the evidence of record, the Board has resolved reasonable doubt to find that these 1968 X-rays showed an injury related back disability caused by the in-service heavy lifting injury, as opposed to a congenital back disability. This evidence is sufficient to place in equipoise the question of whether the Veteran experienced chronic back disability symptoms during service and/or continuity of symptomatology of a back disability since service separation that was later diagnosed as arthritis of the lumbar spine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (a veteran is competent to testify regarding continuous joint pain since service). Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran had symptoms of a back disability during service and experienced “chronic” symptoms during service and “continuous” symptoms since service separation of arthritis of the lumbar spine. As such, the criteria for presumptive service connection for arthritis of the lumbar spine under 38 C.F.R. § 3.303(b) based on “chronic” in-service and “continuous” post service symptoms have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. Finally, the evidence of record indicates that the Veteran may be diagnosed with other back disorders, to include degenerative disc disease (DDD) and Bertolotti’s syndrome. Where a veteran is diagnosed with multiple back/spinal disorders, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In this case, the Board is unable to differentiate the symptomatology of the now service connected arthritis of the lumbar spine from any other back/spinal disorders. As such, the Board has attributed all disability symptomatology and functional impairment to the now service connected arthritis of the lumbar spine, and the RO should consider all of the Veteran’s back symptomatology and functional impairment when assigning an initial disability rating. For these reasons, the Board need not consider whether service connection is also warranted for any other back disorders. E. Choi Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.