Citation Nr: 21031819 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-08 809 DATE: May 24, 2021 ORDER The appeal of the issue of entitlement to rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is dismissed. The appeal of the issue of entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to May 23, 2017 is dismissed. Entitlement to service connection for a lumbar spine disability to include degenerative joint and disc disease is granted. FINDINGS OF FACT 1. During a January 2021 Board of Veterans' Appeals (Board) virtual tele-hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeals for entitlement to rating in excess of 70 percent for PTSD and entitlement to a TDIU prior to May 23, 2017. 2. Competent and credible evidence of record demonstrates that the Veteran's current lumbar spine disability to include degenerative joint and disc disease had onset in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals for entitlement to rating in excess of 70 percent for PTSD and entitlement to a TDIU prior to May 23, 2017 by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for a lumbar spine disability to include degenerative joint and disc disease are met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2004 to June 2006 and from April 2009 to June 2010 with additional service in the Army National Guard. Among other awards, the Veteran received the Combat Action Badge (CAB). 1. Entitlement to a higher rating for PTSD 2. Entitlement to a TDIU prior to May 23, 2017 During his January 2021 Board hearing, the Veteran stated that he desired to withdraw the claims for entitlement to rating in excess of 70 percent for PTSD and entitlement to a TDIU prior to May 23, 2017. The undersigned verified that the representative had explained the ramifications of a withdrawal to the Veteran, and informed the Veteran that he is not precluded from filing a new claim for those issues at a later date at a Department of Veterans Affairs (VA) Regional Office (RO), essentially starting the process over. This testimony constitutes a valid withdrawal of the Veteran's appeal as it reflects that the withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. See Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011) ("withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant"). 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. 38 C.F.R. § 19.55. Accordingly, the Board does not have jurisdiction to review the claims of entitlement to rating in excess of 70 percent for PTSD and entitlement to a TDIU prior to May 23, 2017, and they are dismissed. 3. Service connection for a back condition The Veteran contends that he has a back disability related to his military service. Specifically, he notes that he had back pain that began during active service and has continued since. The Veteran's personnel records show that his military occupational specialty (MOS) was as an artilleryman. The Veteran served in Iraq from December 2004 to June 2006 and in Afghanistan from April 2009 to June 2010. During both deployments, he received the CAB. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). As to claims made by combat veterans, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. The combat presumption may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). The combat presumption must be applied to two questions: (1) whether the claimed in-service injurious event occurred and (2) whether the claimed disability itself occurred while in service. Reeves, 682 F.3d at 999. In other words, the combat presumption relieves the veteran of having to establish that the injurious event suffered while in service led to disability following service, thereby permitting the veteran to have to show only that the injury or disease incurred in service was a chronic condition that persisted in the years following service. Id. For certain enumerated chronic diseases, such as arthritis, service connection may be granted based upon a presumption of incurrence in or aggravation by service despite the lack of evidence of such disease during service if diagnosed and manifested to a compensable degree within a prescribed period, generally one year, after separation from qualifying service. 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Additionally, for those same enumerated chronic diseases service connection may be granted despite the lack of evidence of such disease during service if there is a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303 (b), 3.309(a); Walker, 708 F.3d at 1331. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. 38 C.F.R. § 3.307 (b). The Board concludes that the Veteran has, in pertinent part, a current diagnosis of degenerative arthritis of the lumbar spine, as evidenced by the May 2015 VA examination, and that it is related to the in-service diagnoses of chronic back pain. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a); see also March 2021 private medical report (current diagnoses include degenerative disc and joint disease of the lumbar spine). The Board notes that the Veteran's service treatment records (STRs) have not been found. A November 2013 VA memorandum noted that multiple attempts to locate the Veteran's STRs had been made; however, no records were located. The Board is aware that when service records are unavailable through no fault of a veteran, it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The evidence shows the Veteran currently has a diagnosis of lumbar spine degenerative arthritis/lower lumbar spondylosis and degenerative disc disease, and reports of back pain from carrying equipment during his combat service in Iraq and Afghanistan, which is consistent with the circumstances of his service. Therefore, the primary question before the Board is whether the Veteran's confirmed in-service injury caused his current lumbar spine disability. The Board observes that there is a presumption of service connection for a chronic disease such as arthritis, rebuttable only by clearly attributable intercurrent causes, which manifests during service and then again "at any later date, however remote." Groves v. Peake, 524 F.3d 1306, 1309 (2008). In this case, the Veteran currently manifests degenerative joint disease (arthritis) as well as degenerative disc disease of the lumbar spine. Thus, pursuant to Groves, the Board finds that the criteria for entitlement to service connection for degenerative arthritis of the lumbar spine have been met as there is no clear intercurrent cause of arthritis in the lumbar spine shown by the record. In making this favorable determination, the Board is aware that the evidentiary record contains a medical opinion which weigh against the Veteran's service connection claim. VA treatment records from November 2010, November 2012, February 2013, April 2013, and July 2013 note that the Veteran complained of chronic lower back pain with onset during his active service. In May 2015, the Veteran underwent a VA examination for back conditions. He was diagnosed with thoracic spine scoliosis and degenerative arthritis of the lumbar spine with spondylolisthesis of L5 on S1. He reported daily lower back pain since 2005/2006 when he was deployed to Iraq due to the weight of his body armor. He recalled slight sharp back pain. When he was deployed to Afghanistan, the back pain worsened, and he was placed on light duty twice. His back pain had continued since and occasionally flared. The examiner opined that it is not at least as likely as not that the Veteran's current back condition is related to active service. The examiner explained that the evidence did not support a nexus link between an in-service back injury and the current lumbar spine arthritis as there was documented evidence of a chronic back condition during his deployments. The examiner gave little weight to the Veteran's repeated assertions of his back pain beginning during active service. As the examiner appeared to rely primarily on a lack of documented treatment for back pain during service as the basis for the negative opinion, the examination is inadequate to evaluate the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In an August 2015 statement, the Veteran noted that his back pain onset during his deployment to Iraq and has been chronic since. An August 2017 VA treatment record showed that the Veteran complained of back pain. He reported constant back pain since active duty service. Image studies showed spina bifida occulta of the lumbar spine and lytic spondylolisthesis of the lumbar spine. During his January 2021 Board hearing, the Veteran stated that his back pain began when he was deployed to Iraq in 2005 and that his back pain has continued since. He did not have back pain prior to his deployment. During his initial deployment he was continually lifting and carrying heavy objects which caused a painful sensation in his lower back. He described it as a constant strain. The Veteran reported his back pain to a medic while deployed and was given medication. In March 2021, a private physician examined the Veteran, reviewed the record, and opined that the Veteran's lumbar spine disability is directly related to his active service. The physician explained that the image studies showed that the Veteran's lumbar spine arthritis is consistent with his original back injury during active service. The Veteran noted lower back pain since his first deployment after repetitive stresses and traumatic episodes. The physician cited medical literature that found localized strain/sprain injuries to one area of the spine along with instability can lead to compromised traumatic arthritic development in the most proximal area of the spine. Also, the physician noted that the Veteran reported continual back pain since his in-service injury. The Board notes that lay testimony is competent as to matters capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran has consistently reported back pain with onset during active service. The May 2015 VA examiner's opinion did not consider the Veteran's competent lay statements of low back pain during service and ongoing symptoms since that time. Thus, the opinion is inadequate and are afforded little probative value. The Veteran is competent to report that his low back pain began during active service and symptoms continued since his active service, and these reports are credible. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See Baldwin v. West, 13 Vet. App. 1 (1999). In this case, although there is a contrary opinion of record, the positive physician's opinion, as outlined above, evidences an awareness of the Veteran's medical history, provides fully articulated opinions, and furnishes a reasoned analysis. The Board therefore attaches significant probative value to this opinion, as it is well reasoned, detailed, consistent with other evidence of record, and consider the history and nature of the in-service incident and the claimed disability. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that the claim for service connection for a lumbar spine disability to include degenerative joint and disc disease is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.