Citation Nr: 21025441 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-54 795 DATE: April 28, 2021 ORDER Entitlement to service connection for lumbar spine strain, intervertebral disc syndrome, and degenerative joint disease (lumbar spine disability) (claimed as back, arthritis) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his lumbar spine disability is at least as likely as not related to his in-service fall. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine 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 had active service with the Army from July 1993 to October 1995. This matter is on appeal to the Board of Veterans’ Appeals (the Board) from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. Applicable Law and Regulations Direct service connection can be established if the Veteran shows (1) the existence of a present disability, (2) an 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. 38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. Due consideration must be given to all pertinent medical and lay evidence in evaluating a claim for service connection for any disability. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence that does not require the proponent to have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Lay statements can be considered competent to establish a diagnosis when the layperson is competent to identify the medical condition, reports a contemporaneous medical diagnosis, or describes symptoms which support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Once evidence is deemed competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465 (1994). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background and Analysis The Veteran contends service connection for a lumbar spine disability is warranted due to a back injury in service. He reported injuring his back in October 1994 during Military Operations in Urban Terrain (MOUT) training in Germany. He fell 20 feet from the high wire portion of an obstacle course. He injured his left, dominant hand in 1993, which weakened his grip strength and made holding onto the wire difficult. After the fall, he was evaluated by combat medics but reported he did not request additional treatment because it was common knowledge that treatment for pain in service was Motrin. During his September 1995 separation physical, he reported recurrent back pain to the examiner. After his separation from service, he continued to experience constant pain. He took pain medications and saw two chiropractors. In 2009, he started seeing an orthopedic doctor. The Veteran was diagnosed with lumbar degenerative joint disease, which is chronic disease under 38 C.F.R. § 3.309(a). However, this condition was not diagnosed in service or shown to manifest to a compensable degree within one year of his release from active service. His service treatment records show normal clinical findings during his March 1993 entrance examination except for his feet and a neck mole. In September 1995, he reported recurrent back pain to doctors. His back hurt sometimes when lifting heavy objects. However, his service treatment records do not show a diagnosed back condition. In July 1996, he denied current back pain and had a normal clinical examination. A May 2012 magnetic resonance imaging (MRI) of the lumbar spine revealed disc herniation at L4-5 and L5-S1. To the extent that the Veteran is asserting that he experienced continuing symptoms of back pain since active service, the Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, as the Veteran was not diagnosed with a lumbar spine disability until many years after service and there was a significant period between his service and his post-service complaints where the medical record was silent for complaints of back pain, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Therefore, his lumbar spine disability was not shown by the evidence of record to manifest in service or to a compensable degree within one year of his release from active service. 38 C.F.R. §§ 3.309(a). As such, the Board analyzes service connection for a lumbar spine disability under a direct basis. The Veteran has a current disability of lumbar strain, intervertebral disc syndrome, and degenerative joint disease of the lumbar spine. As such, the first Shedden element is met. In March 2017, A.D., the Veteran’s wife, opined she had known him since 1989. They met in high school, began dating in 1991, and were married in 1998. She reported speaking with the Veteran on the phone while he was on active duty. He told her that he fell off a wire and hurt his back during training. He did not go see a doctor because he was going to “suck it up.” A.D. reported visiting him in Germany where she noticed immediately that his posture was off, and he walked differently. She reported her belief that he was hurt worse than he was willing to admit. After his separation from service, he was too stubborn to seek treatment but eventually began to see a chiropractor. In April 2017, R.M. and B.B., the Veteran’s friends, each provided statements. R.M. opined they served together from 1994 to October 1995. B.B. opined they served together from July 1993 to October 1995. Both reported deployment for MOUT training in Germany. They witnessed the Veteran fall about 20 feet from the high wire portion of the obstacle course onto his back. He was seen by medics and got up slowly after several minutes. R.M. opined the Veteran told him the next day that his back hurt but he was going to “drive on.” R.M. noted this mentality was typical of infantry guys. Additionally, R.M. opined that he noticed after the fall the Veteran complained of back pain after training, road marches, and long runs. B.B. opined prior to the fall, he never heard the Veteran complain about his back, but after the fall he recalled him complaining of back pain several times. A.D., R.M., and B.B. are competent and credible to report their observations and conversations with the Veteran. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Although the Veteran’s back injury was not documented in his service treatment records, the Board finds the Veteran to be a reliable historian as to his report of an in-service back injury during training. Additionally, the reports of A.D., R.M., and B.B. were probative in establishing an in-service injury. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on these credible reports, the second Shedden element has been met. Therefore, the question to be decided in the present appeal is whether the current lumbar spine disability was caused by or the result of the Veteran’s active service. The preponderance of the evidence supports finding that the Veteran’s lumbar spine disability is related to his in-service fall. A May 2016 VA examination diagnosed a lumbar strain, intervertebral disc syndrome, and degenerative joint disease of the lumbar spine. The examiner opined it was less likely than not that his current back condition was incurred in or caused by his military service. The examiner found that his service treatment records showed no documented back complaints. During his 1996 examination he denied lower back issues. Additionally, his private treatment records show treatment for a back condition in 2012 with a report of ongoing pain for nine months. This opinion is accorded no probative weight because it is based on an inaccurate factual premise that the Veteran did not complain of back pain in service. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In fact, his September 1995 separation examination shows him reporting recurrent back pain to doctors. In April 2017, E.B. (MD), the Veteran’s private treating provider, opined to first treating the Veteran in June 2009 for left sciatica and documented disc herniation at L4-5. The Veteran reported falling from a high wire in 1994 and injuring his back. He did not seek medical treatment in service and “sucked it up.” E.B. opined it was more likely than not that the physical trauma suffered during his 20-foot fall from the high wire while training in the Army caused his recurrent low back condition. In April 2017, J.R. (DC), the Veteran’s private treating provider, opined he first consulted with the Veteran in May 2003. He sought treatment for lower back pain. The Veteran reported falling 20 feet from a high wire during obstacle course training in service. He did not seek care in service because his goal was to enter law enforcement after his separation. He believed a disability from the army would impact his chances of police work. J.R. opined in the absence of the fall referenced above the Veteran would not have the lower back condition that he now experiences. His condition more likely than not was the direct result of the above referenced fall. The opinions of E.B. and J.R. were based on a review of his health records and clinical interview of the Veteran. These opinions relied on sufficient facts and data. They were found highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Having considered the credible lay reports and weighing the medical opinions of record, the Board resolves reasonable doubt in the Veteran's favor and finds service connection for his lumbar spine disability warranted. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Byers 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.