Citation Nr: 21027016 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-03 923A DATE: May 4, 2021 ORDER Service connection for a chronic lumbar spine disability is granted. FINDINGS OF FACT 1. The Veteran has a current chronic lumbar spine disability, to include a diagnosis of lumbar spine degenerative joint disease. 2. The weight of the probative and competent evidence supports a finding that the Veteran's chronic lumbar spine disability, to include lumbar spine degenerative joint disease, had its onset during active military service and he has had continuous symptoms of the same since. CONCLUSION OF LAW The criteria for entitlement to service connection for a chronic lumbar spine disability are met. 38 U.S.C. §§ 1101, 1110, 1131, 1154(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 2001 to October 2005. As a result of his military service, the Veteran received the Combat Action Ribbon among other decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been before the Board on previous occasions. It was remanded for additional development in January 2020 and denied in June 2020. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 Order, the Court vacated the June 2020 Board decision and remanded the appeal for action consistent with the Joint Motion for Remand (JMR). The matter has now returned to the Board for readjudication in compliance with the JMR. SERVICE CONNECTION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be: 1) 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) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including degenerative joint disease, will be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. When the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease 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. 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). Additionally, where a Veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, 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, 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. Id. Further, for Veterans who engaged in combat during service, the provisions of 38 U.S.C. § 1154(b) apply, which state, in pertinent part, that in any case where a Veteran is engaged in combat during active service, lay or other evidence of service incurrence of combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 5758 (1990). Entitlement to service connection for a chronic lumbar spine disability is granted. The Veteran contends that his current chronic lumbar spine disability is etiologically related to a lumbar spine injury incurred during combat, and as such, seeks service connection based on the combat presumption. Alternatively, he contends that he is entitled to service connection on a presumptive basis for his lumbar spine disability based on chronicity of symptomatology. As noted above, this appeal was remanded by the Court in December 2020 for action consistent with the terms of the parties' JMR. The parties agreed that remand was warranted because the Board provided an inadequate statement of reasons or bases for denying the Veteran's claim to service connection for a chronic lumbar spine disability. Specifically, the Board failed to consider whether the Veteran's claimed chronic lumbar spine disability was incurred coincident with an April 2004 combat injury pursuant to 38 U.S.C. § 1154(b). As detailed in the JMR, § 1154(b) allows the Veteran to establish that he incurred not only the injury coincident with the harmful event in combat, but also the actual disability for which service connection is currently sought. Reeves v. Shinseki, 682 F.3d 988, 999-1000 (Fed. Cir. 2012). Turning to the evidence, the Veteran has current diagnoses of lumbosacral strain and degenerative joint disease with bulging disc of the lumbar spine. See 01/07/2020 C&P Exam. Accordingly, the first element of service connection, current disability, is met. Further, degenerative joint disease is a chronic disease (i.e., arthritis) under 38 C.F.R. § 3.309(a) and subject to presumptive service connection pursuant to 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). As noted above, the Veteran's DD 214 reflects that he was awarded the Combat Action Ribbon. See 05/08/2014 Certificate of Release or Discharge From Active Duty. As such, § 1154(b) applies, and lay evidence that the Veteran's chronic lumbar spine disability was incurred or aggravated in combat will be sufficient to prove service connection if consistent with the circumstances, condition or hardships of such service. 38 U.S.C.§ 1154(b); 38 C.F.R. § 3.304(d). Additionally, the Board finds that the Veteran's statements have been internally consistent throughout his appeal, as well as consistent with the competent evidence of record, to include lay statements submitted by fellow soldiers who served with the Veteran and the Veteran's parents. See 07/30/2013 Buddy / Lay Statements; see also 01/14/2020 Buddy / Lay Statement. In addition, the record contains an October 2014 lay statement by M.T.M., who served as Hospital Corpsman in the same platoon the Veteran was assigned during overseas service in Fallujah. See 02/05/2020 Buddy / Lay Statement. M.T.M. reported that in April 2004, the Veteran sought medical treatment for a back injury incurred after falling off of a wall during a night patrol. Notably, M.T.M. indicated that he prescribed the Veteran Motrin to treat his back pain during the following days, but did not document the injury or treatment in the Veteran's service treatment records (STRs). Accordingly, the Board acknowledges that the Veteran's STRs do not specifically document the April 2004 lumbar spine injury, but finds that the Veteran's statements and the lay statements of record regarding the incurrence of lumbar spine injury with chronicity of symptoms ever since are consistent with the circumstances and conditions of his service. 38 U.S.C. § 1154(b). The remaining question for the Board is whether there is a nexus, or link, between the Veteran's current chronic lumbar spine disability and his military service. In a March 2021 private medical opinion, Dr. D.A., MD, opined that it was more likely than not that the Veteran's current lumbar spine degenerative joint disease is etiologically related to his military service. See 03/15/2021 Medical Treatment Record Non-Government Facility at 4. As rationale, Dr. D.A. noted that the Veteran incurred a "substantial" back injury during service in 2004, and that there was no evidence of any other intervening events that would explain his current diagnosis. See id. at 4-7. Dr. D.A. further reasoned that arthritis can manifest many years after an initial injury, and that combat veterans are especially susceptible to osteoarthritis. See id. Similarly, the Veteran has submitted articles from The Journal of the American Academy of Orthopedic Surgeons, which identify high levels of posttraumatic osteoarthritis caused by combat injuries among Veterans. See 03/15/2021 Correspondence. In February 2020, a VA examiner opined that the Veteran's lumbar spine disability was less likely than not incurred in or caused by an in-service injury. See 02/13/2020 C&P Exam. The examiner based his opinion on the fact that the Veteran's STRs did not contain objective evidence of an acute or chronic lumbar spine condition. See id. at 2. Here, the Board observes that the February 2020 VA examiner's rationale did not address the Veteran's combat experience and the April 2004 combat injury that the Veteran has competently and credibly reported throughout the appeal. The VA examiner's opinion is based on the absence of documentation of a lumbar spine disability in STRs, and is contrary to precedential caselaw. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that a VA examination was inadequate because the examiner failed to comment on the Veteran's report of an in-service injury and relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). The Board thus finds that the February 2020 VA examiner's opinion to be of diminished probative value and weight. After review of the competent and probative evidence of record, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence is at least in equipoise as to whether his current chronic lumbar spine disability, to include degenerative joint disease, is related to his service. 38 U.S.C. § 5107(b). In this regard, the Veteran has competently and credibly asserted that he injured his back during combat operations in April 2004, and M.T.M.'s August 2014 lay statement competently describes in-service treatment for a lumbar spine injury, and also accounts for the lack of documentation of a lumbar spine injury in the STRs. The Board acknowledges the February 2020 VA examiner's negative opinion as to nexus, but finds that it is entitled to little probative weight. Further, the Board finds that, on balance, Dr. D.A.'s favorable opinion is more probative and persuasive, as it shows greater consideration of the relevant evidence, to include evidence of the Veteran's April 2004 combat injury, and provides a much more thorough medical rationale. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that the credibility and weight of opinions are within the province of the adjudicator). As such, the Board finds that Dr. D.A.'s medical opinion is entitled to substantial probative weight. The Board further finds that the weight of the competent and probative evidence supports a finding that the Veteran's current chronic lumbar spine disability, to include lumbosacral strain and degenerative joint disease with bulging disc of the lumbar spine, was incurred coincident with active combat service, and that the Veteran has experienced chronicity of symptoms since service. See 38 C.F.R. §§ 3.102, 3.303. Accordingly, service connection for a chronic lumbar spine disability is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Tremont 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.