Citation Nr: 21042395 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-40 022A DATE: July 12, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for degenerative disc disease of the lumbar spine is reopened. New and material evidence having been received, the claim for entitlement to service connection for an acquired psychiatric disorder is granted is reopened. Entitlement to service connection for degenerative disc disease of the lumbar spine is granted. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a lumbar spine disorder, is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A September 2003 rating decision denied service connection for a lumbar spine disorder. Notice of that rating decision was provided to the Veteran that same month, and the Veteran did not perfect an appeal of the September 2003 rating decision or submit new and material evidence within one year of the notification of that decision. 2. A March 2011 rating decision denied service connection for an acquired psychiatric disorder and confirmed and continued the previous denial of entitlement to service connection for a lumbar spine disorder. Notice of that rating decision was sent to the Veteran that same month, and the Veteran did not perfect an appeal of the March 2011 rating decision or submit new and material evidence within one year of the notification of that rating decision. 3. Evidence received since the March 2011 rating decision is new and relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a lumbar spine disorder. 4. Evidence received since the March 2011 rating decision is new and relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for an acquired psychiatric disorder. 5. With consideration of the benefit of the doubt, degenerative arthritis of the lumbar spine was caused by or incurred during the Veteran's active duty service. 6. The probative evidence of record shows that the Veteran's acquired psychiatric disorder was caused or aggravated by his service-connected lumbar spine disorder. CONCLUSIONS OF LAW 1. The September 2003 and March 2011 rating decisions are final with respect to the Veteran's claim to establish service connection for a lumbar spine disorder. 38 U.S.C. § 7105(c), 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The March 2011 rating decision is final with respect to the Veteran's claim to establish service connection for an acquired psychiatric disorder. 38 U.S.C. § 7105(c), 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. The criteria for entitlement to service connection for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1973 to December 1975. The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge in February 2021. A transcript of that hearing is associated with the claims file. The Board has considered the Veteran's claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As an initial matter, the Board finds that new and material evidence has been received to reopen the claims of entitlement to service connection for a lumbar spine disorder and an acquired psychiatric disorder. Entitlement to service connection for a lumbar spine disorder was initially denied in a September 2003 rating decision because there was no evidence linking the in-service episodes of lumbar strain to the Veteran's diagnosed lumbar spine disorder. A March 2011 rating decision reopened the claim, but again denied it based upon a finding that the evidence did not show a nexus between the in-service lumbar spine symptoms and the current disability. Since the March 2011 rating decision, additional private treatment records have been associated with the claims file which document complaints of and treatment for low back symptoms during the 1980's and 1990's. The Board finds this evidence to be both new and material, as it was not of record at the time of the March 2011 rating decision and because it shows a continuity of lumbar spine symptoms after service discharge. Accordingly, the claim for entitlement to service connection for a lumbar spine disorder is reopened. Entitlement to service connection for an acquired psychiatric disorder was initially denied in a March 2011 rating decision because the evidence of record did not show that an acquired psychiatric disorder was related to active duty service or to a service-connected disability. Since the March 2011 rating decision, an August 2015 VA examination was obtained which relates the Veteran's diagnosed acquired psychiatric disability to his chronic low back disorder. Because service connection is granted for a lumbar spine disorder herein, the August 2015 VA opinion constitutes new and material evidence sufficient to reopen the claim for entitlement to service connection for an acquired psychiatric disorder. Accordingly, the claim for entitlement to service connection for an acquired psychiatric disorder is reopened. Service Connection Service connection may be established for a disability resulting from disease or injury which was clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition, certain chronic diseases, such as degenerative arthritis, may be presumed to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309(a), including arthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for degenerative disc disease of the lumbar spine After thorough consideration of the evidence of record, the Board concludes that service connection is warranted for degenerative disc disease of the lumbar spine, as arthritis is a chronic disease subject to presumptive service connection under 38 C.F.R. § 3.309(a) based upon a showing of continuity of symptomatology. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1331. The current medical evidence of record documents X-ray findings of degenerative arthritis of the lumbar spine. Accordingly, a current lumbar spine disability is established. Additionally, the Veteran's service treatment records document complaints of and treatment for lumbar spine pain. In May 1973, December 1973, and March 1974, the Veteran reported and was treated for pain in the lumbar spine. In July 1974, the Veteran again complained of back pain, noting that he injured his back while playing baseball. An X-ray of the lumbar spine conducted at that time was normal, and the diagnosis was lower back strain. Thus, there is evidence of an in-service injury or event. Private treatment records beginning in 1980 document post-service complaints of and treatment for low back pain. Private treatment records from the late 1990's also document reports of chronic and recurrent low back pain. VA treatment records dating from 2001 document regular complaints of and treatment for chronic back pain. In October 2001 and March 2002, the Veteran reported a 25-year history of chronic low back pain. A magnetic resonance imaging scan (MRI) of the lumbar spine conducted in January 2006 reveals findings of degenerative disc disease in the lumbar spine. During his February 2021 hearing before the Board, the Veteran reported that he has experienced recurrent low back pain continuously since his active duty service. In support of his statements, he submitted numerous lay statements from co-workers, neighbors, friends, and family who report that they have witnessed the Veteran experiencing chronic low back pain since 1995. The Board acknowledges the September 2010 and August 2015 VA opinions which concluded that the Veteran's current low back disorder was not related to his active duty service. However, both of these opinions were based upon inaccurate facts. The September 2010 VA opinion provided rationale noting that there were no reported back problems at service discharge or for 20 years after service. Similarly, the August 2015 VA examiner explained that the post-service medical records did not show "continuity of care for condition (from 1974 and 2001)." However, as noted above, there are private medical treatment records dating from 1980, approximately five years after service discharge, which reflect ongoing back problems. Additionally, the Veteran has provided lay testimony reporting chronic back problems since service discharge and lay statements from friends and family corroborating his statements. None of this evidence was addressed or considered by either VA examiner. Accordingly, because the September 2010 and August 2015 VA opinions were based upon inaccurate facts and do not address all of the probative evidence of record, the Board does not afford them significant probative value. In determining whether service connection is warranted for disease or disability, VA must determine 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, considering the evidence of record and affording the Veteran the benefit of the doubt, the Board finds the Veteran's testimony concerning the onset of his low back symptoms during service, which is corroborated by service treatment records, and his testimony of continuous symptoms since service, which is corroborated by lay statements from friends and family as well as private and VA treatment records since 1980, support a finding that it is at least as likely as not that the Veteran's current lumbar spine arthritis had its onset in service and has continued to the present. See Walker, 708 F.3d 1331 (Fed. Cir. 2013). Consequently, the Board finds that entitlement to service connection for degenerative arthritis of the lumbar spine is established. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b). 2. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a lumbar spine disorder, After thorough consideration of the evidence of record, the Board concludes that service connection for an acquired psychiatric disorder is warranted. There is a current diagnosis of depressive disorder. See August 2015 VA examination. Accordingly, a current disability is established. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). In addition, the only medical evidence addressing the etiology of the Veteran's depressive disorder opines that the acquired psychiatric disorder was caused or aggravated by his service-connected lumbar spine disability. 38 U.S.C. § 1113(b); 38 C.F.R. §§ 3.303; see Allen, 7 Vet. App. 439 (holding that secondary service connection requires that evidence is sufficient to show that the current disability was either caused or aggravated by a service-connected disability). In a September 2010 VA examination, the VA examiner opined that it was at least as likely as not that the Veteran's depression was "secondary to his back condition," noting that the "main cause of his depression is his chronic pain and the physical limitations from his back problems." Similarly, in an August 2015 VA opinion, the examiner concluded that the Veteran's persistent depressive disorder was "at least as likely as not due to his chronic back pain." The law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b). In this case, the only evidence of record discussing the etiology of the Veteran's acquired psychiatric disorder reflects that the psychiatric disorder was caused or aggravated by his now service-connected lumbar spine disability. The Board therefore concludes that a grant of service connection for an acquired psychiatric disorder is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner'.... [I]f... the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). REASONS FOR REMAND Entitlement to a TDIU is remanded. As a result of this decision, the Veteran has been granted entitlement to service connection for a lumbar spine disability and an acquired psychiatric disorder. The Agency of Original Jurisdiction (AOJ) must assign disability ratings in the first instance; such assignment may impact whether the Veteran satisfies the schedular requirements for a TDIU rating as set forth in 38 C.F.R. § 4.16(a). Thus, a decision by the Board on the Veteran's TDIU claim would be premature. The matters are REMANDED for the following action: Assign disability ratings and effective dates for the Veteran's lumbar spine disability and acquired psychiatric disorder. Thereafter, readjudicate the Veteran's claim for entitlement to a TDIU. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.