Citation Nr: 21039932 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-22 956 DATE: July 1, 2021 ORDER Service connection for lumbar spine degenerative disc disease status post spinal fusion, degenerative arthritis, and intervertebral disc syndrome, is granted. FINDINGS OF FACT 1. The Veteran has current diagnoses of lumbar spine degenerative disc disease status post spinal fusion with bilateral lower extremity radiculopathy, degenerative arthritis of the spine, and intervertebral disc syndrome. 2. Symptoms of the back arthritis started during service. 3. Symptoms of the back arthritis have been continuous since service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for chronic disease presumptive service connection for back arthritis are met. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active duty service from January 1972 to March 1975, and from August 1978 to October 1995. The instant matter is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision that denied service connection for back arthritis. The matter has been before the Board of Veterans' Appeals (Board) previously. In June 2019, the Board remanded the matter for further development of private treatment records and a nexus opinion. As the records and opinion have been provided, the Board finds that there has been substantial compliance with the terms of the remand and that the case is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Legal Authority Direct Service Connection Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 incurrent in service. 38 C.F.R. § 3.303(d). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. Chronic Disease Presumptive Service Connection The Veteran currently has arthritis. Arthritis is a "chronic disease" for purposes of 38 C.F.R. § 3.309(a); accordingly, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a); Walker, 703 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in-service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. § §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service Connection for a Back Disability is Granted After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran experienced symptoms of back arthritis during service (pain and limitation of motion) and continuous symptoms since service separation. The evidence shows current diagnoses of lumbar spine degenerative disc disease status post spinal fusion with bilateral lower extremity radiculopathy, degenerative arthritis of the spine, and intervertebral disc syndrome. See January 2020 VA Examination. The Board finds that the evidence is at least in equipoise as to the onset of back arthritis symptoms during service. In the October 1995 Report of Medical History at separation, the Veteran marked "yes" to having experienced recurrent back pain. When asked for specific information by the reviewing medical provider, the Veteran reported that he had frequent lower back pain while sitting, standing, or walking longer than 30 minutes that was noted in the last six to eight months. The Veteran reported no recent injury, but provided a history of a low back strain at Airborne School in 1979. The medical professional wrote "parachuting injury?" but did not state explicitly that it happened. While the service treatment (medical) records do not explicitly document any injuries along this line, the Department of Defense Form 214 confirms that the Veteran was in Airborne School in 1979, which is consistent with reports of multiple jumps and impacts during service. The service treatment records also show a history of in-service back injury, even if the in-service diagnosis was still in question. Resolving reasonable doubt in the Veteran's favor, the Board finds that, at a minimum, the Veteran had an in-service back injury and had been experiencing recurrent back pain for at least six to eight months prior to service separation. Such evidence shows chronic back symptoms in service. Regarding continuous symptoms since service, the Board finds that the evidence is at least in equipoise as to the experience of continuous back symptoms since service separation. In an April 2014 Private Treatment Record, the Veteran reported that he had experienced a dull to sharp ache that travels down the left leg and around to the groin for 20 plus years. This statement is treated as highly credible because it was made in conjunction with seeking treatment, rather than for compensation purposes. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (holding that a Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). Although there is a suggestion in a separate treatment record that the Veteran may have experienced back pain with a later onset date, the Board will resolve the issue in the Veteran's favor and find that the reported symptoms of pain and limited motion have been continuous since service separation. Resolving reasonable doubt in the Veteran's favor, the Board finds that symptoms of back arthritis started during service and have been continuous since service separation, which meets the criteria for presumptive service connection for chronic disease under 38 C.F.R. § 3.303(b). The Board recognizes that there is a nexus opinion against direct service connection; however, as the Board is granting presumptive service connection under 38 C.F.R. § 3.303(b) based on continuous post-service symptoms, the direct service connection theory, and the need for a direct service connection opinion, are rendered moot. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.