Citation Nr: 21040950 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 19-39 204 DATE: July 7, 2021 ORDER Service connection for degenerative arthritis, lumbar spine, is granted. FINDING OF FACT The Veteran injured his lumbar spine during service, has experienced lumbar spine symptoms continuously since separation from service, and has been diagnosed with arthritis of the lumbar spine. CONCLUSION OF LAW The criteria for service connection for degenerative arthritis, lumbar spine, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1133, 5107; 38 C.F.R. §§ 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1989 to May 1993. In June 2020, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board); a copy of the transcript of that hearing is of record. Entitlement to service connection for degenerative arthritis, lumbar spine. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. § 3.303 (a). Generally, to establish a right to compensation for a present disability, the claimant must provide competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). Alternatively, continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology under 38 C.F.R. § 3.303 (b); Barr v. Nicholson, 21 Vet. App. 303 (2007). Where a claimant asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, he can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a), including arthritis. Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Such chronic diseases are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1110, 1112, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a claimant is competent to report on that of which he or she has personal knowledge). 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 appellant 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran, in statements made during the appeal, including during his June 2020Board hearing, reported that during service, while parachuting, he injured his lumbar spine. He asserted that he sought treatment, was treated with pain medication, and continued self-treating his condition with exercise and pain medication and did not seek further in-service treatment. He asserted that he was released from active service early in order to attend college and was advised to refrain from reporting any current medical complaints as such would require him to remain in service for evaluation for 90 days and he would not be able to attend college as planned. He asserted that his lumbar spine continued to cause him pain during college and he sought private treatment for such in early 1994, shortly after separation from service. He reported that he has experienced continued and worsening lumbar spine symptoms since his in-service parachuting injury. The Veteran's service treatment records indicate that in July 1992 he presented with three days of severe low back pain, post-parachute jump. He had limited motion and muscle strength, with muscle spasm, was diagnosed with low back strain due to a twisting motion in his rig during a jump, and was treated with medication. In a September 2019 Disability Benefits Questionnaire (DBQ), the Veteran was diagnosed with, in pertinent part, degenerative arthritis, lumbar spine. He reported that he injured his low back during a parachute jump in service and has experienced persistent pain since that time. The examiner opined that the Veteran's condition was less likely than not related to his in-service injury and reasoned that the rest of his service treatment records were silent for further complaint or treatment, allowing for the assertion that the injury was acute, self-limited, and resolved, and that there were no post-service records documenting a recurrent chronic ongoing condition. In a December 2019 statement, one of the Veteran's private treatment providers asserted that the Veteran had been treated in his office since early 1994 for low back pain reported after an in-service parachute jump. The treatment provider described the Veteran's continued treatment and pertinent clinical findings and opined that his condition was related to his in-service injury. The Veteran's in-service lumbar spine injury is documented. He is competent to report that he has experienced long-standing and progressively worse lumbar spine symptoms since separation from service; the Board finds no basis upon which to consider that he is not credible in this regard. Layno, 6 Vet. App. 465, 470; 38 C.F.R. § 3.159 (a) (2). His private treatment, beginning shortly after separation from service, has been ongoing and is documented. While the VA examiner offered a negative etiological opinion on the basis that the condition was acute and resolved, without a chronic ongoing condition, it does not appear that the examiner considered the Veteran's competent and credible lay statements or had the opportunity to consider the clinical evidence submitted in December 2019. The VA opinion is thus of little probative value. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Based on the forgoing, there is probative evidence of a current lumbar spine disability, diagnosed as arthritis, an in-service lumbar spine injury, and long-standing progressively worse lumbar spine symptoms from the time of separation from service to the present. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1133; 38 C.F.R. § 3.309; Walker, 708 F.3d 1331, at 1337-39. The Board thus finds that service connection for degenerative arthritis, lumbar spine, is warranted. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.