Citation Nr: 21040366 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 14-28 582A DATE: July 3, 2021 ORDER Entitlement to service connection for a lumbar spine degenerative disc disease is granted. FINDING OF FACT The evidence is in at least relative equipoise as to whether the Veteran's lumbar spine degenerative disc disease is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine degenerative disc disease have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 to August 1972, and August 1976 to September 1991. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2013 rating decision issued by the Department of Veterans Affairs (VA). See June 2013 Notice of Disagreement (NOD); July 2014 Statement of the Case (SOC); August 2014 Substantive Appeal (VA Form 9). In June 2018, the Board found that new and material evidence was submitted and warrants reopening the Veteran's claim of entitlement to service connection for a lumbar spine disability. See June 2018 Board Decision. The Board remanded the underlying claim of service connection for further development. Id. In February 2021, the Board remanded the service connection claim to obtain clarification from a VA examiner. February 2021 Board Decision. The agency of original jurisdiction (AOJ) developed the evidence and continued the denial of the Veteran's claim. See April 2021 Supplemental Statement of the Case (SSOC). The claim is now back before the Board. Entitlement to service connection for lumbar spine degenerative disc disease. The Veteran asserts entitlement to service connection for a chronic low back condition that first manifested during service. See October 1991 VA Form 21 526; April 2011 VA Form 21 4138; October 2012 VA Form 21-4138. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Certain chronic diseases, such as arthritis, which are manifested to a compensable degree within one year of discharge from active duty, shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such diseases during the period of service. See 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, if a chronic disease listed at 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) is noted during service or the presumptive period, but not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, the evidence shows that the Veteran has a current low back condition, diagnosed as lumbar spine degenerative disc disease. See January 2013 VA examination for back. The evidence also shows that the Veteran experienced chronic back pain during service. An April 1974 service treatment record shows that the Veteran sought treatment for sharp back pain that radiated down his legs for the last two days with no reported trauma. The Veteran reported that his pain started after performing duties that required heavy lifting. See id. Service treatment records show the Veteran continued to seek treatment for radiating back pain throughout service. See, e.g., February 1975 Service treatment record; June 1977 Service treatment record; October 1980 Service treatment record; October 1988 Service treatment record. The Veteran also reported to his service treatment providers that this was an ongoing issue, suggesting he had back symptoms even during periods without documented medical treatment. See December 1980 Service treatment record; October 1988 Service treatment record. Moreover, recurrent back pain was reported on his August 1991 Report of Medical History during separation. In 1991, after separation, the Veteran filed for entitlement to service connection for chronic low back pain, but the claim was denied. October 1991 VA Form 21-526; December 1991 Rating Decision. There is no objective evidence of lumbar degenerative disc disease until 2013, about 20 years after discharge from active duty. January 2013 VA examination for back. However, the Board considered the Veteran's statement that he has experienced back pain since service and treated with anti-inflammatory medication. April 2011 VA Form 21-4138; August 2014 VA Form 9. The Veteran is competent to report having experienced symptoms of back pain, even if he is not competent to opine on its cause. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His statements are also consistent with his in-service statements and treatment. The Board finds the Veteran's statements to be probative for these reasons and that they support he experienced continuing back symptoms since service. The Board recognizes that x-ray evidence prior to January 2013 showed normal lumbar spine findings and that the January 2013, October 2019, and February 2021 VA examiners each opined that it is less likely than not that the Veteran's lumbar spine degenerative disease was incurred in or otherwise due to service. However, as discussed in the February 2021 Board decision, the January 2013 and October 2019 VA examiners did not provide adequate rationale for their opinions. The February 2021 VA examination obtained on remand cited the same medical literature supporting cumulative trauma causing degenerative disc disease in only 3 percent of cases with no explanation as how this applies to the Veteran's specific medical picture. See February 2021 VA examination medical opinion. There is no adequate medical opinion as to why the Veteran had chronic back pain during service that continued up to at least the January 2013 x-rays showed degenerative disc disease in his lumbar spine, but the earlier normal lumbar spine images do raise a reasonable doubt as to whether the degenerative changes first manifested within a year of his discharge from active duty. In resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's current lumbar spine degenerative disc disease, taken in light of his testimony of symptomatology since that time, is related to his active duty. Accordingly, entitlement to service connection for lumbar spine degenerative disc disease is warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin 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.