Citation Nr: 21023507 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-10 641 DATE: April 20, 2021 ORDER Entitlement to service connection for a back condition, claimed as a lower back disability is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, his currently diagnosed back condition, to include lumbar degenerative disc disease, began in and has continued since his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back condition, to include degenerative disc disease, 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 in the United States Army from March 1966 to February 1968. This issue has a long and extensive procedural history. Most recently, in June 2017, the Board denied the Appellant’s claim for service connection for a back condition. Thereafter, the Appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In January 2018 Joint Motion for Remand (JMR), the parties moved the Court to vacate the June 2017 decision with respect to the issues pertaining to the issue of service connection. In October 2018, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. A transcript of the hearing is of record. The Board subsequently remanded the case to an AOJ in May 2019. The Board finds that the RO has substantially complied with the May 2019 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a back condition, claimed as a lower back disability The Veteran contends that his current lumbar spine disability is the result of his lumbar strain during active service. He contends that the lower back pain that he reported in service has continued through to the present. Certain chronic diseases 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). The Board finds that the Veteran has provided competent and consistent lay reports of lumbar spine pain that began during service and has been continuous since recurrent strain during service, post-service clinical tests confirm that he has significant degenerative arthritis of the lumbar spine. Furthermore, although the VA examiners’ nexus opinions were negative, they failed to adequately consider the Veteran’s competent lay reports; therefore, the evidence is at least in relative equipoise as to whether the Veteran’s lumbar spine disability, to include degenerative arthritis is presumptively related to service based on continuity of symptoms. The Board also notes a positive nexus opinion from a private provider. The Veteran has a current diagnosis of degenerative disc disease and grade I degenerative facet disease at L5-S1 with spondylolisthesis at L5-S1 with bilateral spondylosis and L5 disc herniation as evidenced by a June 2010 VA examination. Arthritis, here diagnosed as degenerative disc disease, is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Service treatment records show the Veteran complained of low back pain and was treated for symptoms of lower back pain diagnosed as a lumbar strain in March 1996, during active service. A March 1966 x-ray indicated “negative lumbar spine” due to reports of chronic low backache. The Veteran underwent physical therapy in April 1966 and continued to report lumbar spasm and lower back pain after a fall on a basketball court in September 1966. The Veteran’s February 1968 separation examination indicated the Veteran continued to experience recurrent back pain. While no treatment records exist from during the applicable presumptive period, the Board finds that the Veteran continued to experience the same symptoms from March 1966 to the present. The Veteran is competent to report that he experienced symptoms of low back pain during that period but did not seek treatment because he felt not in a financial position to seek formal medical treatment until approximately 1988. The Veteran indicated that he self-medicated with over-the-counter medications following discharge from service. The Veteran further reported that his older records had been reported destroyed by the treatment providers. Specifically, the Veteran reported receiving care from a Dr. B and a Dr. E in Louisiana in 1972, but these records were unavailable. He reported he received further treatment in 1988. His statements are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record. Throughout the appeal, the Veteran has submitted statements in support of his claim, including testimony provided at a Board hearing. The Veteran has continuously alleged that he injured his low back in service and that his pain and limitations have existed and continued since such time. The medical evidence is not in dispute as to whether the Veteran has a current lumbar spine disability. In addition, the Veteran is fully competent to report lay-observable symptoms (such as low back pain) and describe their history, course, and progression, and the Board has found no reason to question the veracity of his statements espousing continuous low back pain since service. They have been largely consistent and are not directly refuted by any other evidence, including medical evidence. Caluza, 7 Vet. App. at 511. The Veteran has submitted multiple lay buddy statements consistent with his report of continuity of symptoms since his military service. An October 2019 letter from a sibling indicated that he remembered the Veteran telling him about a severe back injury while they were both in service in the 1960s. The letter indicated the Veteran continued to receive treatment for ongoing back problems. A January 2020 buddy statement from C.H. indicated that he had known the Veteran for over fifty years, and the Veteran has suffered from back injuries since his time in service. Another January 2020 buddy statement was submitted by another sibling. The sibling indicated that the Veteran complained frequently of backaches and pains to this day after returning from service in 1968. The sibling reported the brother has the same complaints today but with more severity. In July 2010, the Veteran underwent a VA examination that the Board has previously found to be inadequate. A CT scan of the lumbar spine demonstrated local moderate degenerative spondylosis at L5-S1 due to chronic spondylosis of L5 and noted the L5-S1 disc space is markedly narrowed with osteophyte formation. The physical examination revealed some limitation of motion. The examiner diagnosed the Veteran with degenerative disc disease and grade I degenerative facet disease at L5-S1 with spondylolisthesis at L5-S1 with bilateral L5 spondylosis. The examiner also noted L5 disc herniation. The examiner opined the Veteran would have occupational problems with decreased mobility, difficulty with lifting and carrying, and pain. The examiner opined the Veteran’s current L5-S1 spondylosis is not related to multiple complaints of low back pain shown as lumbosacral strain and left paravertebral muscle spasm noted during his military service. As rationale, the examiner indicated that his low back pain was not a sign or symptom of disc disease and his x-ray was normal. In December 2018, the Veteran submitted a private opinion from an Orthopedic Surgeon, F.G. Dr. F.G. indicated that the x-ray interpretation in service was inaccurate because he would have already had spondylolisthesis at the time of his military service. Dr. F.G. further opined that given the history of a low back injury occurring during active duty and multiple documented clinical visits with light duty and medications prescribed that [the] Veteran has a service-connected lumbosacral condition. A January 2020 addendum opinion was provided by a VA examiner. The examiner opined that the current disability was not related to the injury during service because there was no treatment for spondylosis or spondylolisthesis during service or during the applicable appeal period. The examiner rejected the Veteran’s lay statements and buddy statements as being incompetent to provide an etiological opinion regarding the Veteran’s pain. The VA examiner also indicated that the Veteran’s spinal injuries in service were “unlikely” to be the cause of the Veteran’s degenerative joint disease. The Board notes that the Veteran and the authors of his buddy statements are competent to report their own observable symptomology of low back pain or reports of symptoms. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Further, the Board notes that “unlikely to be” is not the correct standard in a service connection case. (Continued on the next page) Under the circumstances, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s current lumbar spine disability has been continuous since, or is otherwise related to, service. Resolving all remaining reasonable doubt in the Veteran’s favor, the Board finds that service connection for a lumbar spine disability is warranted, and the appeal in this matter must be granted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Taylor, 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.