Citation Nr: 21031118 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 14-20 783 DATE: May 20, 2021 ORDER Entitlement to service connection for degenerative arthritis of the lumbar spine is granted. FINDING OF FACT The competent and credible evidence of record is at least in equipoise that the Veteran's degenerative arthritis of the lumbar spine is due to her service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for degenerative arthritis of the lumbar spine have been 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 from August 1990 to June 1992; she also served in the Georgia Army National Guard from June 1993 to September 1995, with periods of active duty for training (ACDUTRA); finally, she had United States Army Reserve service thereafter. This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2017, the Veteran testified before the undersigned during a videoconference hearing; a transcript of the hearing is of record. This matter was before the Board in January 2018 and December 2020, wherein the Board remanded the issue for a VA examination and medical opinion. The matter has returned to the Board for adjudication. The Veteran's claims file does not contain all service treatment records. Attempts were made by the Agency of Original Jurisdiction (AOJ) to obtain the complete records. The Board recognizes its heightened obligation to explain findings and conclusions, and heightened duty to carefully consider the benefit of the doubt rule. However, this heightened duty does not lower the threshold for an allowance of a claim, for example where the evidence almost but not quite reaches the positive-negative balance. In other words, the legal standard for proving a claim is not lowered; rather, the obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2014); 38 C.F.R. § 3.303(a) (2017). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C. § 101(21) (2014), (24); 38 C.F.R. § 3.6(a) (2017). Active military, naval, or air service also includes any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. 1. Degenerative arthritis of the lumbar spine The Veteran claims entitlement to service connection for a lumbar spine disorder. The evidence of record shows that the Veteran was diagnosed with degenerative arthritis of the lumbar spine. See August 2020 VA Examination. The Veteran alleges that she started to experience back pain during basic training after doing pushups. See July 2017 Hearing Transcript, p. 6. She sought treatment and eventually underwent two weeks of physical therapy. Id.at 7. She stated that she continued to experience back pain throughout the rest of her active duty service, including during her pregnancy, and that the pain continued after her discharge from active duty. The Veteran also stated that she underwent treatment for low back pain while service in the National Guard in 1994. She stated that, although she did not seek treatment thereafter, she continued to experience low back pain until she filed her claim for service connection in 2009. Id. at 12. A May 1994 line of duty determination shows the Veteran complained of back pain and was ordered physical therapy and found to be in the line of duty. Of record is a May 1994 Statement of Medical Examination and Duty Status which detailed an injury to the Veteran's back sustained in February 1994. The Statement of Medical Examination and Duty Status noted that her injury was incurred in the line of duty, and that she was on ACDUTRA at the time. Thus, the first and second elements of service connection have been established. The remaining inquiry is whether the diagnosis was due to service. See 38 C.F.R. § 3.310. The Veteran underwent a VA examination in October 2009. The examiner noted her reported history of low back pain since late 1990. She was diagnosed with a chronic lumbosacral strain. Despite the diagnosis, the examiner did not provide an opinion as to whether the chronic lumbosacral strain was related to her military service. The Veteran was afforded a VA examination in August 2020. She was diagnosed with degenerative arthritis of the spine. The examiner stated that review of the medical records show that the Veteran served from August 1990 to June 1992 and a documented injury in 1994. She was diagnosed with chronic back pain, lumbar facet osteoarthritis by Dr. A.D. in November 2017. She noted that based on the examination and medical records review, the lower back condition is less likely than not (less than 50 percent probability) incurred in or caused by the result of active duty service. As rationale, the examiner explained that the injury to the back happened in 1994 and the Veteran was discharged from service in 1992. Therefore, the Veteran does have a current back condition, but it did not occur during Veteran's active duty, contrary to the findings of the line of duty determination in 1994 during a period of ACDUTRA. The Veteran was afforded a VA examination in March 2021 where the examiner opined that the Veteran's disability was less likely than not due to service. By way of rationale the examiner noted the Veteran's complaint of back pain during basic training but "no objective evidence to support that claim". The examiner also noted the May 1994 injury in service but found "the medical record is silent for any chronicity of care from 1994-2008". The examiner ceded that the Veteran is competent to report a history of symptomatology but seemingly found her statements incredible because "[w]ithout documented continuity of care during the 14 year gap, a new injury or disease process cannot be excluded". The examiner did not provide a reason other than the absence of medical documentation for why her statements did not establish continuity of symptomatology. Finally, the examiner found that the January 2009 VA examination showed a normal back examination, though the 2009 examiner diagnosed a chronic lumbosacral strain and no other testing was accomplished to establish the conclusion that her back was normal. The March 2021 examiner's opinion was incomplete in his discussion of the Veteran's competent lay assertions of continuous back pain since service and conclusory in his opinion where previous findings were not definitive and without sufficient rationale. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular 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, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue"). In this matter, the Veteran has continuously asserted that she has experienced back pain during, and following, her service. The post-service medical records document the Veteran's reports of having a history of back pain during and since service. The Veteran reported experiencing pain in basic training, throughout her service, and during her time in the Reserves. Service connection can also be granted for chronic disabilities, if the evidence establishes that it manifested to a compensable degree within one year after the Veteran was separated from service. 38 C.F.R. § 3.307, §3.309. Service connection for chronic disabilities can be established through a showing of continuity of symptomatology since service, as an alternative to the nexus requirement. 38 C.F.R. § 3.303(b). This option is limited to chronic disabilities listed in 38 C.F.R. § 3.309(a). After a thorough consideration of this relevant evidence of record, the Board finds the Veteran's statements and testimony as to onset and continuity of symptomatology regarding her low back condition to be credible. Her statements have been consistent with each other, her service records, and post-service treatment records. The Veteran has maintained consistently that she has experienced low back pain since service. Resolving all reasonable doubt in favor of the Veteran, the Board finds that her diagnosed lumbar spine disability, characterized as degenerative arthritis of the lumbar spine, are related to her complaints during her military service and thus onset therein. As the Board finds that the criteria for service connection for this disability have been met, service connection for a low back disability characterized as degenerative arthritis of the lumbar spine is granted. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, Associate Counsel 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.