Citation Nr: 21032305
Decision Date: 05/26/21	Archive Date: 05/26/21

DOCKET NO. 16-44 526
DATE: May 26, 2021

ORDER

Service connection for a lumbar spine disability is granted.

FINDING OF FACT

The Veteran's lumbar spine disability had its onset in service.

CONCLUSION OF LAW

The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Marines Corps from April 1968 to April 1972, including service in the Republic of Vietnam.  His decorations include the Combat Action Ribbon.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO).

This case was previously before the Board in February 2020 when, in part, it was remanded for further development. 

Service Connection

In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303.  To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability.  See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a).

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C. § 7104(a).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

Lumbar Spine Disability

The Veteran reports that service connection for his lumbar spine disability is warranted.  In support, the Veteran reports that his chronic low back pain has continued since service.  See December 1976 VA Form 10-10m.  Additionally, his service treatment record shows that he suffered from back pain in service.  See August 1970 report (noting the Veteran's complaint of a two-year history of recurrent low back pain); April 1971 report (noting the Veteran's complaint of chronic back pain).  Further, the record confirms the Veteran's diagnosis and VA medical treatment for the claimed condition.  See January 2020 VA examination; see also December 2016, June 2018 VA medical treatment records. 

The Veteran was diagnosed with lumbosacral spondylosis (January 2020 VA examination), degenerative lumbar spinal stenosis (June 2018 VA treatment record) and degenerative disk disease (December 2016 VA treatment record).  Thus, the Veteran has a current disability and establishes the first element for service connection. 

Moreover, his service treatment record and medical record shows that he suffered from back pain in service and treatment thereafter.  See August 1970, April 1971 service treatment records; see also December 1976 VA Form 10-10m; May 1985 VA Form 10-10m. 

The evidence shows that the Veteran's lumbar spine disability is related to service, thus, service connection is warranted.  See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty").

The Board finds that the evidence linking the Veteran's lumbar spine disability to service is probative, competent and credible.  Further, the Board also finds that the competent and credible medical and lay evidence, shows that his lumbar spine disability began during service and has been recurrent since that time.  

The Veteran is competent to report his lumbar spine disability began in service and the Board finds the Veteran's statements credible.  See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465 (1994).  The Board finds that the medical and lay evidence is consistent with other evidence of record, and further finds that it is competent and credible.  38 U.S.C. § 1154(b).  

The Board finds that the evidence shows that the Veteran's lumbar spine disability had its onset in service and has been recurrent since that time.  Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's lumbar spine disability had its onset during his period of military service.  As such, service connection is warranted. See 38 C.F.R. § 3.303(a).

 

 

Jarrette A. Marley

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Alvarado- 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.