Citation Nr: 21041160 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-24 330A DATE: July 8, 2021 ORDER Service connection for degenerative disc disease at L5-S1 and back arthritis is granted. FINDINGS OF FACT 1. The Veteran has current diagnoses of degenerative disc disease at L5-S1 and back arthritis (back arthritis). 2. Symptoms of back arthritis started during service. 3. Symptoms of 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 August 1979 to August 1985. 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 May 2018, the Board remanded the matter for additional development, to include acquiring missing service treatment records and any private or VA treatment records. Since then, the RO made numerous attempts to find service treatment records that were missing from August 1979 to August 1983, but a full search has not yielded the records. See June 2021 Correspondence. The RO notified the Veteran of the attempts that were made and the outcome and gave the Veteran the opportunity to submit any records that she might have in her possession, but there was no response. See 38 C.F.R. § 3.159(e). Further attempts to obtain the records would be futile. The record also reflects that the RO tried to obtain a list of treating VA providers or medical centers and a release to obtain any private records, but the Veteran did not reply to the letter requesting the list of providers or a release. See January 2019 Correspondence. As the RO has attempted to obtain the records that were mandated by the remand, the Board finds that there has been substantial compliance with the terms of remand and adjudication can proceed. 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 of the low back. 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 Back Arthritis is Granted. The evidence shows current diagnoses of degenerative disc disease at L5-S1 and back arthritis. See November 2011 VA examination; May 2013 Private MRI. Accordingly, the present disability requirement has been met. The Veteran asserts that the current back arthritis is due to heavy lifting requirements during service due to her position as an egress systems mechanic for the United States Air Force. See July 2014 VA Form 9. 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 (painful motion) and continuous symptoms of arthritis since service separation. With regard to the onset of back arthritis symptoms during service, a June 1985 Report of Medical History at separation shows the Veteran marked "yes" to having experienced recurrent back pain. The medical provider's explanation stated that the recurrent back pain was related to in-service work in 1983, treated with physical therapy, was recurrent to present, and was still currently active. In the June 1985 Report of Medical Examination at service separation, the medical provider assessed that the spine was "abnormal," noting slight tenderness at L-4, and recurrent back pain due to service event in 1983, treated with physical therapy, recurrent to present, and was still active at the time of service separation. Given the affirmative responses to recurrent back pain in both records and the description of how the back pain was addressed, the Board finds that the evidence is at least in equipoise as to the onset of back arthritis symptoms during service. Regarding continuous symptoms since service, the Board finds that the evidence is at least in equipoise as to the existence of continuous back arthritis symptoms since service separation. During the November 2011 VA Examination, the Veteran reported that back arthritis symptoms started in the 1980s (during service) and were off and on for the thirty years that followed. See November 2011 VA Examination. In the July 2012 Notice of Disagreement, the Veteran reported that she self-medicated and did physical therapy on her own for years before submitting the claim because she was scared of having surgery, so she did not want to go to a doctor. See July 2012 Notice of Disagreement. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that symptoms of back arthritis were continuous after service. These findings meet the criteria for presumptive service connection for the "chronic" disease of arthritis of the low back under 38 U.S.C. § 1112 and 38 C.F.R. § 3.303(b). As the evidence does not differentiate other back disorders and symptoms from the arthritis, the Board finds that all back symptoms and functional impairment should be rated as part of the service-connected back arthritis. 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.