Citation Nr: 21040970 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-10 432 DATE: July 7, 2021 ORDER Service connection for lumbar degenerative arthritis is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise that the Veteran's current lumbar degenerative arthritis began during active duty and has continued since that time. CONCLUSION OF LAW The criteria for service connection for lumbar degenerative arthritis are met. 38 U.S.C. §§ 1111, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from June 1977 to March 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing in August 2019; a transcript of that hearing is of record. Subsequently, the Board remanded the above issue in April 2020 to provide the Veteran with an examination. This matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran was provided with an examination. Additionally, in a May 2021 rating decision, the RO granted service connection for bilateral pes planus, obstructive sleep apnea, pseudofolliculitis barbae, a cervical disability, and hypertension. As these grants represent full grants of the benefits sought, these issues are no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) 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) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain diseases may also be established on a presumptive basis by showing that such a 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, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Arthritis is an enumerated chronic disease. See 38 U.S.C. §§ 1101, 1112. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 5758 (1990). Entitlement to service connection for a lumbar disability. The Veteran asserts service connection for a lower back disability. After reviewing the relevant lay and medical evidence, the Board concludes that the Veteran has a current diagnosis of degenerative arthritis, and that the evidence is at least in equipoise that it began during service and has continued since then. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.310(a). He has a current diagnosis of lumbosacral strain and lumbar degenerative arthritis to include as reported at the March 2021 examination. As such, the first element of service connection is met. His service treatment records document back pain. Additionally, centralized lower back pain with a gradual onset was reported in 1979 in his service records. He also testified at a Board hearing regarding his back pain. He acknowledged he has had recurring pain and stiffness. His symptoms persisted after he exited active duty, so he saw a physician. The Board finds the Veteran competent and credible to describe his lower back pain and stiffness beginning in service from his basketball injury and continuing since that time. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board in the April 2020 remand previously found the April 2013 nexus opinion insufficiently considered the evidence of record. The March 2021 examiner provided a negative nexus opinion for the Veteran's disability. She acknowledged that his service treatment records showed back pain, but there was not chronicity of care since separation. The examiner also reported the Veteran's back pain in service had a gradual onset. However, the examiner again relied on the absence of evidence of chronicity of care since separation. The examiner did not address the Veteran's competent and credible lay testimony. The Board finds this opinion to have little probative value. In this regard, the examiner relied on the absence of chronicity of care, while not addressing the Veteran's credible lay statements, to provide a negative nexus opinion. As such, the Board places little probative value on this nexus opinion. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his lumbar degenerative arthritis began during service and has continued since that time. 38 C.F.R. § 3.303(b), 3.309(a). The Board acknowledges the negative nexus opinion but has found that it has little probative value as it relies on the absence of medical records show chronicity of care while not addressing the Veteran's credible lay statements. Additionally, the Board has found the Veteran competent and credible to describe his back pain and stiffness beginning in service and continuing since that time. (Continued on the next page) As such, the Board finds that the positive and negative evidence of record balances out. 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and "the nation, ' in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits"). As such, the Board finds that the evidence is at least in equipoise that the Veteran's current degenerative arthritis began during service and has continued since that time. Therefore, service connection for a lower back disability is warranted. 38 C.F.R. § 3.102, 3.303. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.