Citation Nr: 21030903 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 13-18 113 DATE: May 19, 2021 ORDER Entitlement to service connection for a low back disability is granted. FINDING OF FACT The Veteran's back disability is related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 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 in the United States Marine Corps from January 1972 to April 1974. The matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned Veterans Law Judge at a May 2016 videoconference hearing. A copy of the transcript is of record. The Board remanded the matter in September 2015, August 2016, and August 2017. In July 2019, the Board denied service connection for a low back disability. The Veteran appealed that decision to the United States Court of Veterans Claims (Court). In July 2020, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of VA (Parties). In its Order granting the JMPR, the Court vacated the July 2019 Board decision with respect to the low back denial and remanded the matter to the Board for compliance with the JMPR instructions. In vacating the Board's July 2019 low back denial, the Court stated the Board failed to ensure that VA satisfied its duty to assist and failed to provide an adequate statement of reasons and bases. With respect to the duty to assist, the Court stated that the May 2018 VA examination and etiology opinion were inadequate because the examiner failed to consider medical and lay evidence indicating numerous intervening reports of back pain. With respect to reasons and bases, the Court stated the Board failed to adequately consider the Veteran's in-service complaints of low back pain with his lay reports of continuity of symptomatology since service, to include complaints of low back pain in 1982, 1993, 2003, 2005, and 2010. The Board notes that in September 2020, the Veteran appointed Robert V. Chisholm, attorney, as his representative. 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. §§ 1110; 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 injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection is warranted for certain chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, that are shown to be chronic in service or that began in service and there is a continuity of symptomatology to the present. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Entitlement to service connection for a low back disability The Veteran contends that service connection is warranted for his low back disability, diagnosed as spinal stenosis and degenerative arthritis of the spine. Specifically, the Veteran contends that his back disability is due to an in-service fall or, alternatively, that his low back disability was caused or aggravated by his service-connected right hip and bilateral knee disabilities. See January 2009 correspondence. The Veteran's DD-214 reflects that the Veteran obtained a Parachute Badge. The etiology opinion of record regarding the low back, dated September 2016, was previously deemed inadequate. The only other etiology opinion is the May 2018 negative nexus opinion that the Court found to be inadequate. Although the Court instructed the VA to obtain a new examination and etiology opinion to fulfill its duty to assist, the Court also instructed the Board to consider the Veteran's lay statements and medical evidence of continuous symptomatology since service. Having considered that evidence of continuous symptomatology, the Board finds it to be unnecessary and prejudicial to the Veteran to delay the appeal to obtain a new examination and opinion, as the current record supports granting the benefit sought on appeal under a presumptive theory. In this case, the Veteran qualifies for consideration under 38 C.F.R. § 3.303(b), as he has been diagnosed with a chronic disease (arthritis) specifically enumerated under 38 C.F.R. § 3.309(a). In this regard, the record contains an initial diagnosis of multilevel lumbar degenerative spondylosis. See April 2010 VA MRI. An April 1973 service treatment record shows that the Veteran complained of back pain. Post-service, the Veteran received ongoing treatment for his back. A February 1982 hospital summary revealed that the Veteran was assessed with low back syndrome with recommendations that he "should not work at jobs which place a strain on his spine." A November 1993 medical note indicated his continued complaints of back pain. A December 2003 medical record noted that the Veteran's low back pain was chronic. A May 2005 VA treatment record also noted complaints of ongoing low back pain. A February 2010 VA treatment note revealed that the Veteran had low back pain "since he was in service." The Veteran was afforded a VA examination in September 2016, at which time the examiner noted diagnoses of lumbosacral strain; degenerative arthritis of the spine; intervertebral disc syndrome; and spinal stenosis. The examiner opined that it was less likely than not that the Veteran's spine disorder was age related. The examiner also reasoned that there were no major injuries in service and that the conditions come on with age. In a May 2018 VA opinion, the examiner noted diagnoses of degenerative arthritis of the spine and spinal stenosis. The examiner opined that it was less likely than not that the Veteran's low back disability was incurred in or caused by the claimed in-service injury/event. The examiner reasoned that while the Veteran subjectively reported back pain since his military service, there was no evidence of intervening back pain. The examiner also noted that if the Veteran had an injury in service, he would have anticipated more findings on his back exam prior to 20 years post service. Again, the Court determined that both the September 2016 and May 2018 VA examinations are inadequate. Both examiners did not address the particularized facts that are specific to the Veteran, to include that the Veteran sustained an in-service injury to the low back. Additionally, the examiners did not adequately consider the Veteran's complaints of low back pain thereafter. Additionally, the examiners relied on an inaccurate factual premise that the Veteran did not have back injuries in service and that the Veteran's low back pain began in 2006. The Board notes that there is a nine-year gap between the Veteran's in-service complaint of low back pain and the first instance of documented medical treatment in the record. See April 1973 STR, February 1982 hospital discharge summary. Yet, the Board finds that the Veteran has competently and credibly testified that he injured his back in service when he landed badly jumping from a plane during jump school. The Veteran also credibly testified, however, that he did not seek treatment and forced his way through jump school because he "wanted his jump wings so bad." Additionally, the Veteran has credibly explained that his back injury, documented during service, has continued following service. Notably, in a March 1983 statement, the Veteran stated that he sustained several injuries during service as a paratrooper, to include a back disorder, and that his injuries still exist. Additionally, in a July 2010 statement, the Veteran reported that he had back pain for 40 years. A Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Pain is the type of condition that is observable by a lay person. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Therefore, the Board finds that the Veteran's lay statements to medical providers regarding his persistent low back pain since service, as detailed above, are competent and credible based on the evidence of record, and continuity of low back symptomatology is established. 38 C.F.R. §§ 3.303(b), 3.309(a). Accordingly, service connection for a low back disability, diagnosed as spinal stenosis and degenerative arthritis of the spine, is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hanson, Tiffany 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.