Citation Nr: 21040368 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-63 552 DATE: July 3, 2021 ORDER Entitlement to service connection for lumbosacral strain and degenerative arthritis of the spine (hereinafter back disability) is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's back disability began during or is otherwise related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the U.S. Army from June 1991 to May 2001. This matter was previously before the Board of Veterans' Appeals (Board) in January 2019, and was remanded for further development, which has been completed. The Board notes the Veteran is not represented at this time. Service Connection To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). 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 incurred in service. 38 C.F.R. § 3.303 (d). Service connection for certain chronic diseases, including arthritis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101 (3), 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309 (a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. §§ 3.307 (a). Alternatively, when a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). However, if a condition is not noted during service, then generally a showing of continuity of symptomatology after service is required for service connection, if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he developed his current back disability from carrying weights up to 100 pounds weekly and for distances up to 25 miles. Furthermore, the Veteran contends that he continued to perform his duties without reporting injuries due to a fear of being skipped for promotion, punishment, or looking weak. It is not in dispute that the Veteran has a current back disability. VA and private treatment records show the Veteran has many problems with his back, including chronic lower back pain, lumbar spondylosis, and degenerative disc disease. See January 2019, J.L.B. Medical Opinion; September 2019, Pain Procedure Note, Robley Rex VAMC. Therefore, the Veteran has met the first condition for service connection, a current disability. The Veteran's current disability, which is an arthritic condition under 38 C.F.R. § 3.309 (a), is not shown to have manifested itself while in service, nor within the first year of discharge. Therefore, the presumptions of 38 U.S.C. §§ 1112, 1113 and 38 C.F.R. §§ 3.307, 3.309 do not apply. However, service connection for a chronic condition may be available if the condition manifested itself at a later date after service and there is a showing of continuity of symptomatology in the record. Service treatment records (STRs) show the Veteran was seen in service on two occasions for back pain. See August 1991 and May 1993 STRs. During the August 1991 emergency room visit, the Veteran reported back strain after excessive heavy lifting. The May 1993 emergency visit included back pain and tenderness at the left paraspinal muscles at the L3 level. Furthermore, service records show the Veteran completed Basic Airborne CRS, earning a Parachutist Badge. The Veteran also earned an Air Assault Badge in 1992, which included an obstacle course, 2-mile run, 6-mile road march, 12-mile foot march in full ruck under 3 hours, and ground and aircraft rappelling. December 2018 buddy statements from fellow service members support the Veteran's contentions that he regularly moved heavy equipment and performed ruck marches. Furthermore, both buddy statements noted that it was frowned upon to complain or go to sick call for injuries, as there was a fear of repercussions and loss of promotion potential. The Veteran reported he had seen a chiropractor from 2002-2004 after leaving service. However, he could not locate the records because the business moved and did not maintain records that far back. Private treatment records show the Veteran sought treatment for low back pain in October 2015, with a diagnosis of degenerative changes at L4-L5 with grade 1 anterolisthesis. See October 2015, PACS Radiology Report. A VA medical opinion was obtained in March 2016. The examiner opined that it was less likely than not the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. Because the Veteran's degenerative disc disease, spondylolisthesis, and anterolisthesis were not diagnosed in service and until 2015, the examiner concluded it was not related to his back pain in service. Furthermore, the examiner noted the Veteran was a prior smoker and that individuals are likely to develop degenerative disc disease early in the spine due to smoking. A second VA medical opinion was obtained in December 2019. The examiner opined that it was less likely than not that the Veteran's back disability was incurred in or caused by the claimed in-service injury, event, or illness, and less likely than not due to or aggravated by the service-connected conditions of tinnitus, dysthymic disorder, or bilateral flexion of the knee/patellofemoral syndrome. However, the examiner noted they were unable to establish a nexus for the Veteran due to the lack of diagnosis in service, the lack of injury in service, the length of time out of service when a diagnosis was established, the Veteran's own statement in 2015 that he only had symptoms for the last several years prior to being diagnosed in 2015, and possible congenital pars defect making it likely and increasing the Veteran's chances of having an increased presence of lumbar degenerative disc disease with symptoms due to the L4 pars defect. Private medical opinions provide evidence in favor of the Veteran's claim. A December 2017 physician reviewed the medical history, military medical records, and civilian records and opined that it is more likely than not the Veteran's back condition is a direct result of repetitive high-impact events a soldier could receive from duties such as a airborne and/or air assault training and other physical activities that require carrying heavy loads for an extended amount of time. See December 2017, T.F.W. Medical Opinion. The physician noted the Veteran has no other known risk factors that may have precipitated his current condition and that his spinal injuries exceed the expectation of a male within his age group. In January 2019, a separate private physician reviewed the medical records and opined that it is more likely than not that the Veteran's back injuries occurred and were aggravated by his physical traumas suffered during military service. See January 2019, J.L.B. Medical Opinion. Here, the examiner stated the Veteran's initial diagnosis was in 2008, only 7 years after his exit from the Army and that the Veteran suffers chronic pain due to his injuries. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Here, the Board notes that the Veteran's testimony and lay statements consistently and credibly indicate that he regularly sustained trauma to his back while in service which is clearly. The record also shows that the Veteran was seen in service for back strain on two occasions. Post-service treatment records show that the Veteran sought treatment for his back after leaving service and that his back became progressively worse over time. Additionally, the Veteran consistently reported onset of symptoms following the in-service events of injury to his back. The Board finds the Veteran's service record of a Parachutist Badge and Air Assault Badge, along with his service and post-service medical treatment records, statements and opinions made by treating private physicians in the record, buddy statements provided by fellow service members, as well as lay statements made by the Veteran of his symptoms, to be competent, credible, and highly probative in this matter. In reaching this conclusion, the Board has not overlooked the fact that the March 2016 and December 2019 VA examiners opined that the Veteran's back disability was not due to his military service. It should be noted that the Board is obligated to consider all pertinent medical and lay evidence on the record. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). As such, and after resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence for and against the claim is in relative equipoise, and therefore service connection for a back disability is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.