Citation Nr: 21028137 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-01 693A DATE: May 10, 2021 ORDER Entitlement to service connection for a low back condition, including arthritis (Degenerative Joint Disease (DJD)), for accrued benefits purposes, is granted. FINDING OF FACT The Veteran's low back condition, including his DJD (arthritis), was attributable to his military service, as partly evidenced by his credible reports of experiencing chronic low back pain since his service until his eventual death. CONCLUSION OF LAW With resolution of all reasonable doubt in the claimant's favor, the criteria are met for entitlement to service connection for the Veteran's low back condition, including arthritis (DJD), for accrued benefits purposes. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1974 to November 1976. Unfortunately, he died in November 2016. However, his widow has been substituted as the claimant. 38 U.S.C. § 5121A; Breedlove v. Shinseki, 24 Vet. App. 7 (2010). This appeal to the Board is from a January 2012 rating decision. In May 2018, the Board determined there was new and material evidence and, therefore, reopened this claim. But, rather than immediately readjudicating this claim on its underlying merits, the Board remanded this claim back to the local Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ) for needed further development and consideration. Entitlement to service connection for a low back condition, including arthritis (DJD), for accrued benefits purposes. Prior to his unfortunate death during the pendency of this appeal, the Veteran contended that he had a back disability because of an injury he had sustained in a car accident on October 18, 1975, so while in service. He also said he had experienced chronic back pain ever since, as a result. Prior to his death, the Veteran had received a diagnosis of degenerative joint disease (DJD), so of arthritis, affecting his low back or lumbar spine. Thus, there is no disputing he had this claimed disability. It also must be shown, however, the disability was the result of his service and, especially, the injury he sustained in October 1975 in the motor vehicle accident. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain "chronic" diseases including arthritis (DJD), will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service, or if they manifested to a compensable degree within one year following separation from service, or if they were noted in service (or during the presumptive period) with continuity of symptomatology since service according to 38 C.F.R. § 3.303(b) that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. See also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate the following: (1) that a condition was "noted" during service; (2) that there is evidence of post-service continuity of the same symptomatology; and (3) that there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997), overruled on other grounds by Walker, 708 F.3d 1331 (Fed. Cir. 2013). A letter dated October 19, 1975 written by the Veteran's commanding officer to the Veteran's parents corroborates the Veteran's report of his car accident in service (specifically, it appears he was hit by a car while on shore leave in Italy). This same letter also indicates he was treated in the sick bay of the ship for a back injury, so a relevant back condition was "noted" during his service. The Board also finds sufficient evidence of continuity of symptomatology since the Veteran's service, until his eventual death, owing to his treatment records dating back as early as 1988 showing he reported to his doctors that he had been experiencing chronic back pain ever since that car accident in service, in 1975. The Board finds these statements credible because they were made to doctors for purposes of medical treatment, when it was incumbent on the Veteran to give the most accurate recitation of his medical history to, in turn, receive the most appropriate medical care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Moreover, he was competent to report having experienced chronic low back pain since that car accident during his service. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, his lay statements concerning this are probative evidence (since both competent and credible) tending to support this posited correlation between that injury in service and eventual diagnosis of arthritis (DJD) of his low back. Indeed, lay evidence is potentially competent to support the presence of a disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records. See, e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Board realizes that an October 2013 VA examiner concluded the Veteran's low back disability was unrelated to his service. The rationale was that a lumbar spine magnetic resonance imaging (MRI) in 2013 had showed age-related degenerative changes, so not owing to his service and the injury in service. However, that examiner's opinion was determined inadequate because it did not consider an October 2014 VA treatment record specifically noting the Veteran's claimed low back disability was being attributed, instead, to being hit by a car during his service and confirmed by a diagnosis of spondylosis of his lumbar spine. An additional VA compensation examiner more recently concluded in March 2021, following the Board's remand of this claim, that the Veteran's low back condition was more likely related to his age (so agreed with the October 2013 VA examiner) and that the Veteran did not have evidence of a low back condition until 2013. But this additional medical opinion also is inadequate because it, too, does not address his ongoing treatment records referencing his car accident in service and consequent chronic back pain as far back as in 1988, so well before 2013. Given the Veteran's credible reports of continuity of symptomology since that accident during his service, as well as his more recent arthritis diagnosis, the evidence ultimately is at least in relative equipoise regarding whether there is the required attribution of his low back disability to the car accident during his service. And, in this circumstance, this reasonable doubt is resolved in the claimant's favor and the claim granted rather than denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Thus, service connection for a low back disability (including DJD/arthritis/spondylosis), for accrued benefits purposes, is granted. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.