Citation Nr: 21039733 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-23 317 DATE: July 1, 2021 ORDER Entitlement to service connection for degenerative arthritis of the lumbar spine is granted. FINDING OF FACT 1. The weight of the evidence supports a finding that the Veteran has a diagnosis of degenerative arthritis of the lumbar spine. 2. The evidence is at least in equipoise as to whether the Veteran has experienced continuity of symptomatology of his degenerative arthritis of the lumbar spine since his period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to service connection for degenerative arthritis of the lumbar spine is granted. The Veteran had active service from August 1986 to October 1986 and from August 1987 to August 1990. This appeal originates from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to service connection for a low back disability. This appeal returns to the Board of Veterans' Appeals (Board) following remands in April 2019 and November 2020. In November 2020 the Board found that there had not been substantial compliance with its April 2019 remand directives. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board again remanded the Veteran's claim. Specifically, in November 2020 the Board directed that the Veteran be afforded an opportunity to identify any non-VA treating providers he has seen for his claimed low back disability and that medical records be obtained from any providers he identified; that all available VA treatment records since May 2014 be associated with the claims file; and that the Veteran be afforded a VA examination in relation to his claimed low back disability. In December 2020 VA requested that the Veteran identify all treating providers he had seen for his low back disability. Updated VA treatment records were associated with the claims file in December 2020, covering the period from May 2014 to December 2020. The Veteran was afforded a VA examination in April 2021. Accordingly, the Board finds that there has been substantial compliance with its November 2020 remand directives and adjudication of the Veteran's claim is appropriate. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Arthritis is among those disabilities for which VA may presume a nexus between an in-service incurrence or event and a current disability provided there is a showing of continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309(a). A December 1989 entry in the Veteran's service treatment records (STRs) reflects complaints of right buttock pain after a fall of approximately 10 12 feet off the back of a truck. A September 2013 VA treatment note reflects a medical imaging study showing mild degenerative changes of the lumbar spine with minimal bilateral neuroforaminal narrowing at L3-L4, L4-L5, and L5-S1. The April 2021 VA examiner documented a diagnosis of degenerative arthritis of the lumbar spine. The Board finds that the Veteran suffered an in-service injury to his lower back, and that he has a current diagnosis of degenerative arthritis of the lumbar spine. A September 2004 private treatment note reflects complaints of lower back pain. In May 2014 the Veteran told a VA treating provider that he had been experiencing low back pain since the time of his in-service fall off the truck. At his August 2018 Board hearing the Veteran testified that he had been experiencing low back pain since the time of his in-service injury, and that it had been progressively worsening. The Veteran testified that he had been managing his pain using over-the-counter treatments. The April 2021 VA examiner opined that the Veteran's degenerative lumbar spine arthritis was less likely than not related to his active service. The examiner cited to the lack of medical treatment for any low back disability in the years following the end of the Veteran's active service. The Board finds the April 2021 opinion to be of limited probative value, as it does not discuss and/or improperly discounts the Veteran's lay statements as to continuity of symptoms. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. Laypeople are competent to report symptoms and experiences observable by their senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Moreover, as a general matter, the absence of evidence is not substantive negative evidence. Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012). In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. In light of the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran has experienced continuous symptoms of degenerative arthritis of the lumbar spine since the time of his active service. As arthritis is a chronic disease under 38 C.F.R. § 3.309(a), service connection may be awarded based solely on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). The weight of the evidence supports a finding that the Veteran suffered a low back injury while in service, and that he has a current diagnosis of degenerative arthritis of the lumbar spine. The evidence is at least in equipoise as to whether the Veteran has experienced continuous symptoms of degenerative arthritis of the lumbar spine since the time of his active service Accordingly, the Board concludes that the criteria for entitlement to service connection for degenerative arthritis of the lumbar spine have been met, and the same is hereby granted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. 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.