Citation Nr: 22011832 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 18-36 353 DATE: March 2, 2022 ORDER Entitlement to service connection for a low back disability, diagnosed as degenerative arthritis of the lumbar spine, is granted. FINDING OF FACT The Veteran's current degenerative arthritis of the lumbar spine was incurred during active duty service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a low back disability, diagnosed as degenerative arthritis of the lumbar spine, have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 2003 to August 2007. For his meritorious service, the Veteran was awarded (among other decorations) the Combat Action Ribbon and Iraq Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2021, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. Entitlement to service connection for a low back disability. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during active service, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board concludes that the Veteran's current degenerative arthritis of the lumbar spine began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service records show that the Veteran participated in combat. The Veteran further testified that he was required to wear heavy gear and move heavy equipment while in combat and throughout his service, and that his lumbar spine was injured as a result of these physically demanding activities. Thus, an inservice back injury is established. 38 U.S.C. § 1154(b). A September 2019 letter from N.K., D.C., included a medical opinion that the Veteran's current lumbar spine disability was related to his military service. The opinion letter stated that the Veteran's current low back disability is consistent with injuries from repetitive heavy lifting and bending, and is the same as the pain he experienced after being released from the military service. Standing in contrast to the Veteran's claim is the November 2016 VA examiner's opinion, which concluded that the Veteran's current low back disability was less likely than not incurred in or caused by his claimed inservice injury. In support of this opinion, the VA examiner noted the lack of any inservice back treatment having been shown in the Veteran's service treatment records, and the lack of any post service back treatment until December 2012. The Board notes, however, that complaints of low back pain are documented in the Veteran's post service treatment records as early as October 2008. Moreover, the Veteran has submitted an August 2016 lay statement from his mother and a September 2016 lay statement from his friend, each noting that the Veteran began to have problems with back pain soon after his discharge from military service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current degenerative arthritis of the lumbar spine arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a low back disability, diagnosed as degenerative arthritis of the lumbar spine, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Yates, 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.