Citation Nr: 21031002 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-60 692 DATE: May 20, 2021 ORDER Service connection for degenerative disc disease of the lumbar spine is granted. The issue of service connection for a cardiovascular disorder is dismissed. FINDINGS OF FACT 1. The evidence of record is at least in equipoise as to whether the Veteran's current degenerative disc disease of the lumbar spine began during the final years of his 27-year Air Force career. 2. Prior to the promulgation of a decision in the appeal, the Veteran withdrew on the record during a virtual hearing his appeal for service connection for a cardiovascular disorder. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for degenerative disc disease of the lumbar spine have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for dismissal of the issue of service connection for a cardiovascular disorder 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 October 1976 to October 2003. This matter comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision. In January 2021, the Veteran testified at a Board virtual hearing; a transcript of the hearing is associated with the claims file. Service Connection 1. Service connection for degenerative disc disease of the lumbar spine The Veteran contends that he injured his low back during military service and he experienced ongoing episodes of low back pain with activity since his retirement from active duty service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish direct service connection, there must be the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that such a disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). On enlistment examination in May 1976, the Veteran's spine was documented as normal on clinical evaluation. In an enlistment report of medical history, he denied currently or ever having recurrent back pain. He identified his usual occupation as "material handler, janitor." In September 1977, he complained of having a back problem for the past day. He explained he initially had mild soreness after lifting the previous day but awoke with moderately increased discomfort. He denied any previous history of back injury. The assessment was lumbar paraspinous strain. A January 2002 telephone triage note reflects the Veteran's report of sudden, sharp back pain since earlier in the morning, making it difficult to tie his shoes. The triage note indicates he was evaluated one week earlier when he developed sharp low back pain after bending over to dry his feet and that a doctor had prescribed medications for back pain before. A February 2002 telephone triage note documents his complaint of back pain for the past three days and notes this was the third time since November or December 2001 that he had experienced back pain that was bad enough to keep him from work. Later that day, he described having pain on both sides of his back since pulling a back muscle three days earlier. The assessment was acute low back pain, recurrent. The examiner ordered a lumbar spine x-ray and requested a physical therapy consultation, noting the Veteran had had low back pain on multiple occasions with interim relief with nonsteroidal anti-inflammatory drugs. A March 2002 physical therapy consultation report reflects the Veteran's report that he had strained his low back while pulling weeds and had two exacerbations since that time, the last episode occurring in January 2002. The examiner noted that the lumbar spine x-rays were reported as negative. The assessment was low back pain, suspect degenerative disc disease. The plan included physical therapy to prevent recurrences of back pain. In April 2002, the Veteran attended physical therapy, including "back school." During a May 2002 physical therapy visit, the Veteran reported he had been feeling fine until he strained his low back the day before while lifting a bag of potting soil. He described mild soreness in his low back, aggravated by sitting, and stated he had been able to lift up to 80 pounds without difficulty. The assessment was mild low back pain exacerbation. The therapist believed the Veteran had good potential for a full recovery from the recent flare-up because he had completed back school and demonstrated a good understanding of all back care principles. The therapist instructed him to call if his low back pain persisted and advised him that he would be discharged from physical therapy in two weeks unless he had further concerns. In August 2003, the Veteran underwent examinations for military retirement. The examination reports do not include findings related to his spine. In October 2014, the Veteran presented for a new patient visit with a private pulmonologist for evaluation of shortness of breath. During a review of systems, he denied having low back pain, gait abnormality, loss of strength, or difficulty balancing. The physician ordered a CT scan of the Veteran's chest; incidental findings included spondylosis of the visualized spine. In May 2015, the Veteran was afforded a VA examination. He reported that his low back problem started during active duty service when he was bent over pulling weeds. He recalled feeling a sharp, icepick pain; going for an evaluation; and being told that an imaging study showed a ruptured disc. He stated he reinjured his lower back one year later tying his shoelaces. He described having occasional back pain worsened when he bends over or lifts something. X-ray examination of the lumbar spine confirmed the presence of arthritis. The diagnosis was degenerative arthritis of the thoracolumbar spine. The examiner opined it was less likely as not that the current low back disability was incurred in or caused by military service. The examiner reasoned that there was no chronicity of a back disorder or complaints in the Veteran's service treatment records and available medical records since separation from service were "silent for a chronic condition/complaint with treatment plan." During a new patient visit with a private physician in December 2019, the Veteran's complaints included low back pain. He stated that his pain "started over many years" and that he had "worked in a job that required him to move heavy metal safes in his youth that may have flared his symptoms." The physician reviewed a recent lumbar spine MRI, which showed evidence of degenerative disc disease in the lower lumbar levels as well as neural foraminal stenosis and lumbar spondylosis. In January 2021, the Veteran testified that before he injured his back pulling weeds around 2002, his job in the command post involved a lot of classified documents and items, which required storage in large safes weighing between 400 and 900 pounds. He testified that he sometimes had to move these safes with one or two other people. He did not describe any particular injury involving the safes. He testified that after separation from service, he worked at Home Depot. He stated that most of the time, he was able to get other employees to help with heavier items such as bags of cement weighing up to 100 pounds. However, at times there was no one else to help and the bending and heavy lifting was aggravating his back and he stopped working there. Considering the medical and lay evidence of record, the evidence is at least in equipoise as to whether the Veteran's current lumbar spine disability had its onset during military service. Accordingly, all reasonable doubt is resolved in the Veteran's favor and service connection for lumbar spine spondylosis or degenerative disc disease is warranted. Although the May 2015 VA examiner believed there was no chronicity of back symptoms during or since military service, the service treatment records document multiple recurrent flare-ups of back pain during military service since late-2001. In addition, although a February 2002 lumbar spine x-ray study was negative, a physical therapist suspected the Veteran had degenerative disc disease based on his repeated exacerbations of symptoms. Finally, given the 27-year length of the Veteran's military career, it is not unreasonable to conclude that his recurrent flare-ups of back pain, which he credibly testified continued after service separation, were attributable to degenerative disc disease, which was not detected on x-ray study but was subsequently detected on CT, MRI, and x-ray studies. In summary, although lumbar spine degenerative disc disease was not clearly documented among the Veteran's service treatment records and the May 2015 VA examiner did not find a link between the current lumbar spine disability and the Veteran's military service, he is competent to describe the frequency and chronicity of low back pain flare-ups during and after service. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for lumbar spine degenerative disc disease is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for a cardiovascular disorder 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. Id. In the present case, during the January 2021 virtual hearing, the Veteran withdrew on the record the issue of service connection for a cardiovascular disorder. He affirmed his understanding that the issue of service connection for a cardiovascular disorder would be listed as "dismissed" in the forthcoming Board decision without further consideration of the issue on the merits. His representative also affirmed he had explained the consequences of withdrawing the issue from appeal to the Veteran. The Veteran's statements on the record are explicit, unambiguous, and done with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Hence, there remain no allegations of errors of fact or law for appellate consideration regarding the issue of service connection for a cardiovascular disorder. 38 C.F.R. § 20.204. Accordingly, the Board does not have jurisdiction to review the appeal of that issue and it is dismissed. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Kirscher Strauss 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.