Citation Nr: 21028705 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-30 982 DATE: May 11, 2021 ORDER Entitlement to service connection for a lumbar spine disability is granted. FINDING OF FACT The Veteran's lumbar spine disability manifested to a compensable degree within one year of his separation from service and is not attributable to intercurrent causes. CONCLUSION OF LAW The criteria are met for entitlement to service connection for a lumbar spine disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 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 from November 2002 to November 2003 and had additional service in the National Guard and Reserves. This appeal to the Board of Veterans' Appeals (Board) is from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously before the Board in August 2018 and September 2020 and both times remanded back to the RO for further development including for needed medical comment concerning the etiology of this lumbar spine disability being claimed, especially in terms whether attributable to the Veteran's service. The remand instructions since has been completed, as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for a lumbar spine disability The Veteran contends that his lumbar spine disability onset during his service or is otherwise related or attributable to his service. The Veteran's claim initially was characterized specifically as for excision of a lesion on his lumbar spine at L4, including owing to a low back injury. However, he has pointed out many different symptoms throughout the pendency of this appeal and in his initial March 2013 claim. VA has a duty to construe claims for benefits broadly to include claims for each condition reasonably raised by the symptoms alleged. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Although Clemons was decided in 2009, it does not comprise new law but simply interprets the existing legal principle that lay persons are not competent to render medical diagnoses. It follows from this that lay claimants need not state a claim for particular diagnoses with specificity. Rather, VA must interpret claims broadly, according to the symptoms alleged. Accordingly, the Board finds that the Veteran's March 2013 claim for "many problems with my back" sufficed to raise a claim of entitlement to service connection more generally for a lumbar spine disability. Service connection is granted for disability shown to be the result of disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Certain "chronic" diseases including degenerative joint disease (DJD), i.e., arthritis, 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; 38 C.F.R. §§ 3.307, 3.309. See also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The report of the May 2019 VA examination, on remand, confirms diagnoses of lumbar spine degenerative arthritis, intervertebral disc syndrome (IVDS), spinal stenosis, spondylolisthesis, and scoliosis. And, as specifically concerning the degenerative arthritis, the report of this examination indicates this was diagnosed in September 2004, so within a year of conclusion of the Veteran's service in November 2003. Moreover, because arthritis at minimum is rated as 10-percent disabling, it was compensable even then. 38 C.F.R. § 4.71a, Diagnostic Code 5003. See also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). A VA treatment record from September 2004 shows the Veteran presented complaining of lumbar spine pain. The evaluating doctor stated that "x-ray of the lumbar spine shows a significant disk space narrowing at L5-S1 and also some at L4-5, other disk spaces higher are good." The Veteran was then diagnosed with lumbar spine degenerative disc disease (DDD). DJD, i.e., arthritis, as opposed to DDD (IVDS), is a presumptive condition according to 38 C.F.R. § 3.309(a). Prior to the recent amendments to the criteria for rating musculoskeletal disabilities that took effect as of February 7, 2021, degenerative arthritis and DDD (IVDS) were rated under two different Diagnostic Codes, 5242 and 5243, respectively, so at least arguably were considered two different conditions. However, the amendments to the rating criteria that took effect as of that date, among other things, now allow for rating both degenerative arthritis (DJD) and DDD (IVDS) under Diagnostic Code 5242 in certain circumstances, so not instead rating DDD exclusively under DC 5243. Thus, for purposes of this decision, the Board will equate the two and consider the Veteran's DDD as equivalent to DJD and, consequently, a chronic condition within the purview of 38 C.F.R. § 3.309(a). The Board acknowledges the October 2020 VA examiner's comments following the Board's additional remand of this claim concerning the September 2004 VA treatment record. More specifically, this most recent VA examiner pointed out the Veteran's statement in September 2004 that his lumbar spine pain had onset "over the last five years" and that this means his back pain in September 2004 could have started before his period of active service that began in November 2002 and ended in November 2003. Further, this examiner pointed out that, on physical examination, the Veteran had full range of motion of his lumbar spine. But, while both these statements raise theoretical possibilities, it does not negate the fact that the evidence of record shows a diagnosis, via x-ray, of DJD/DDD of the lumbar spine within one year of the Veteran separating from that period of active service to, in turn, warrant presuming the DJD/DDD had been incurred during that period of qualifying service. The October 2020 VA examiner's cited evidence and opinions do not constitute "affirmative evidence to the contrary" meaning, the examiner's statements do not show the Veteran's lumbar spine DJD/DDD is not due to his military service. See 38 C.F.R. § 3.307(d). As a "chronic" condition, per se, any subsequent manifestations are service connected unless attributable to other ("intercurrent") causes, and there are none in this instance. Moreover, service connection is permissible for a disease initially diagnosed after separation from service if the evidence, including that pertinent to service, shows the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board consequently is granting this claim by resolving all reasonable doubt concerning the origins of his lumbar spine disability in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.