Citation Nr: 21027714 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-48 911 DATE: May 6, 2021 ORDER Entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for a cervical spine disability is dismissed. FINDINGS OF FACT 1. The Veteran has experienced low back pain related to degenerative disc disease of the lumbar spine since his injury in service and subsequent separation from service. 2. On December 17, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeal of the denial of the claim of service connection for a cervical spine disability is requested. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for dismissal of the claim for entitlement to service connection for a cervical spine disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1964 to July 1967. These matters are on appeal to the Board of Veterans' Appeals (Board) from an August 2015 rating decision. A hearing was held in August 2019; a transcript has been associated with the claims file. This issue has a long and extensive procedural history. Most recently, in November 2019, the Board denied the Appellant's claim for service connection for degenerative disc disease of the thoracolumbar spine and, separately, for degenerative disc disease of the cervical spine. Thereafter, the Appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 Joint Motion for Remand (JMR), the parties moved the Court to vacate the November 2019 decision with respect to the issues pertaining to service connection for a lumbar spine disability. The Veteran also requested a dismissal of the appeal of the claim of entitlement to service connection for a cervical spine disability. Service Connection 1. Entitlement to service connection for a lumbar spine disability The Veteran contends that he experienced a low back injury in service as evidenced by sick call reports in July, August, and October 1966. The Veteran further contends that he experienced pain and limited range of motion while on active duty but was discouraged from going to sick call because he was a sea going sailor. The Veteran reported falling down a latter well injuring his low back with further exacerbation when lifting heavy objects. Alternatively, he contends that he has experienced back pain since his time in service. At the August 2019 hearing, the Veteran testified that he fell off a ladder between decks and hurt his back during that incident. The Veteran reported that the same fall also injured his leg, which he has been granted service connection. The Veteran further reported that he sought treatment for his back pain in the early 1970s, but that his physician at the time was now deceased and any medical records he had were lost during Hurricane Katrina. 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 Veteran has a current diagnosis of degenerative disc disease of the lumbar spine as evidenced by a June 2019 VA treatment records of a lumbar spine MRI showing multilevel degenerative disc disease and neuroforaminal narrowing, most prominent at L5-S1. Degenerative disc disease, or arthritis, 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 and was treated for symptoms of low back pain and lumbar strain in May 1966, July 1966 and August 1966, during active service. The Veteran testified at the hearing that he received treatment for low back pain shortly after discharge from service in the early 1970s, but those records are unavailable due to the death of the physician and the loss of any personal records due to Hurricane Katrina. While no treatment records exist from during the applicable presumptive period, the Board finds that the Veteran continued to experience the same symptoms from discharge to the present. The Veteran underwent a VA examination in May 2015. In a clarification submitted in July 2015, the examiner opined the Veteran's in-service low back pain was related to other etiologies. That examiner also indicated that he believed statements from Veterans are inaccurate, self-serving, and nonobjective. Thus, the Board finds that his opinion is inadequate and entitled to no weight. In September 2017 treatment notes for low back pain, the Veteran indicated that he has delt with pain since an initial injury in service but has felt significant increase in pain over the last 15 years. September 2019 treatment notes show the Veteran reported that his lower back pain began in 1966 when he fell through a hatch. The Board notes that statements made for the purpose of diagnosis or treatment are generally regarded as inherently reliable. Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). The Veteran's nurse practitioner, C.J.H., submitted an opinion in October 2019 that the Veteran's service injuries are at least as likely as not to have contributed to his current disability. Mr. C.J.H. based his opinion on the available medical records and the Veteran's testimony regarding the duration and intensity of his pain. The Board has previously found that the Veteran has consistently alleged that his back pain is the result of a fall down a hatch in service. The Board also previously found that the veteran was competent to report such symptoms espousing continuous back pain since service. The Court reminded the Board in its December 2020 JMR that lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms supports a later medical diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (stating that lay evidence "can be competent and sufficient to establish a diagnosis of a condition" when "lay testimony describing symptoms at the time supports a later diagnosis by a medical professional"). Here, the Veteran has consistently reported low back pain beginning in service and continuing after service. The Veteran was later diagnosed with degenerative disc disease of the lumbar spine. Thus, the Board finds that the Veteran's lay testimony is sufficient to establish a diagnosis of that condition. The Veteran is competent to report that he experienced symptoms of low back pain during the presumptive period period and reported seeking treatment, but that those records are unavailable. His testimony and reports are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows the Veteran's low back pain is attributable to his degenerative disc disease and lumbar strain. Entitlement to service connection for a cervical spine disability The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the appellant indicated that he is not challenging the November 2019 Board decision that denied service connection for his neck disability. (See December 2020 CAVC Decision) and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 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.