Citation Nr: 21029077 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-14 126A DATE: May 12, 2021 ORDER Service connection for a lumber spine disability is granted. FINDING OF FACT Affording the Veteran the benefit of the doubt, his current lumbar spine disability, to include lumbar degenerative disc disease (DDD), was incurred in service. CONCLUSION OF LAW The criteria to establish service connection for a lumbar spine disability have been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1993 to May 1997. Pursuant to a joint motion for partial remand (JMPR) filed by VA and the Veteran, in April 2020 the Court of Appeals for Veterans Claims (CAVC) vacated a portion of an April 2019 Board of Veterans' Appeals (Board) decision and remanded it to the Board for compliance with its instructions. Pursuant to the JMPR, the matter was remanded in September 2020 for evidentiary development and for an addendum opinion. All actions ordered by the remand have been accomplished. In a February 2021 rating decision, the regional office (RO) granted the Veteran's claim of service connection for a cervical spine disability. The issue of service connection for this disability is no longer in appeal status. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disorders listed as "chronic" in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b) are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis, such as DDD, is a "chronic disease" listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where 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. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety 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 presumptive 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. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for a lumber spine disability The Veteran underwent discectomy and hemilaminectomy for a herniated disc in October 2009. January 2014 imaging revealed degenerative disc disease (DDD) of his lumbar spine. The Veteran's February 1993 report of medical history at induction indicates he denied recurrent back pain. His clinical spinal and other musculoskeletal systems evaluations was normal. While on active duty in February 1995 the Veteran experienced a motor vehicle accident (MVA). In September 1995 the Veteran complained of back pain while also receiving treatment for nasal congestion and cough. The examiner noted the Veteran denied bowel impairment but demonstrated tenderness in the mid-back with reduced range of motion. The examiner diagnosed the Veteran with a back strain and advised rest and over-the-counter pain relief medicine. The next day the Veteran reported the sudden onset of pain while talking on the phone. The examiner noted the Veteran denied a history of recent exertion or a prior back injury. On examination the Veteran demonstrated no significant pain to palpation of the paravertebral or spinous processes but reported subjective pain when turning to the left. The examiner diagnosed the Veteran with an acute paravertebral spasm causing low back pain and referred the Veteran to a physical therapist. The following day the Veteran reported to a physical therapist. On examination the Veteran demonstrated range of motion within normal limits, increased pain with cervical flexion, tightness in the mid-to-lower trapezoid muscles, with no cervical compression. The physical therapist diagnosed the Veteran with paravertebral muscle spasms in the mid-thoracic spine and advised the Veteran to apply ice and follow the recommended stretches and strength exercises at home. The next day the Veteran reported the physical therapist's recommendation and requested a refill of pain relief medication. In an early-October 1995 followup call, the examiner noted the Veteran reported marked improvement and that he could return to full activity and difficulties. His condition was noted as "near resolved" and advised to return in a month for a followup evaluation. The Veteran did not return for a followup and he was discharged from physical therapy services. In November 1996 the Veteran reported the sudden onset of low back left-side pain when he turned around. He denied radiating pain and lower extremity numbness or weakness. He reported the pain increased when standing and that the symptoms had been recurring for the past two days. On physical examination the Veteran demonstrated reduced range of motion with forward flexion and lateral rotation but no tenderness to palpation. The examiner assessed the Veteran with lumbar muscle strain and advised the Veteran to take over-the-counter pain relief medication. He was placed on a limited physical profile for approximately two weeks through the end of November 1996. The profile indicated no prolonged standing greater than 30 minutes and no driving. There are no other complaints, diagnoses, or treatments for a lumbar spine condition during service. There is also no separation examination in the record. In March 2009 the Veteran had another MVA. The September 2009 MRI prior to surgery confirmed the presence of a disc extrusion resulting in nerve root displacement, disc protrusions, facet arthropathy, bilateral spondylolysis, and right-side compression. In October 2009 the Veteran underwent a lumbar hemilaminectomy and discectomy. In December 2013 the Veteran underwent a lumbar puncture or spinal tap to evaluate his migraines. A January 2014 CT revealed degenerative disc disease (DDD) with a disc protrusion and right-side lumbar compression. Extensive medical and factual development has been considered and the Board presently finds that the evidence is in approximate balance. Further medical inquiry would not substantially assist the Board in its determination and the claim for service connection for the Veteran's lumbar spine disability will be granted. (Continued on next page) The Board expresses no opinion regarding the severity of the disorder. The RO will assign an appropriate disability rating on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.