Citation Nr: 22012444 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 19-25 778 DATE: March 3, 2022 ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine is granted. FINDING OF FACT The Veteran's current degenerative disc disease of the lumbar spine was incurred in active service. CONCLUSION OF LAW The criteria for service connection for degenerative disc disease of the lumbar spine are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1993 to November 1993, from August 2004 to May 2005, and from October 2007 to November 2008. This appeal arose to the Board of Veterans' Appeals (Board) from a December 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2022, the Veteran testified before the undersigned at a Board virtual hearing. A transcript of the hearing is not yet of record, but will be associated with the claims file during the normal course of business. Entitlement to service connection for a lumbar spine disability The Veteran contends he is entitled to service connection for a lumbar spine disability. He specifically contends he injured his back in service from wearing Kevlar vests and working on construction projects, and has suffered continuous back pain ever since. For the following reasons, the Board finds service connection warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Service connection may also 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). In addition, for veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). On review, the Board concludes that the Veteran suffers from a current disability of lumbar spine degenerative disc disease. This diagnosis was made by a VA physician following an October 2017 examination and x-ray. See 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303(a). The Veteran's medical records establish his longstanding treatment for back problems that began during active service. These records include an October 2008 post-deployment clinical note which reflects his reports of intermittent back pain. In a September 2011 report of medical history, the Veteran indicated he had recurrent back pain. More recently, a June 2017 clinical note shows the Veteran reported ongoing back pain since 2007. On VA examination in October 2017, the Veteran stated that after his 2008 deployment to Iraq, he reported back pain from wearing the cavlar vest, weapons, and doing general construction work in Iraq which caused stress on his back. They did not do x-rays on his back at that time. There has been no recurrent injury. He told the examiner ever since then, he gets back pain daily. At his Board hearing, the Veteran credibly testified that he first experienced back pain during active service, and that his pain has persisted continuously thereafter. Although the record includes a negative nexus opinion authored by a VA examiner in October 2017, the Board finds the Veteran has fulfilled his burden under the reasonable doubt standard. In short, the combination of the October 2008 in-service treatment note establishing in-service incurrence, the September 2011 Reserve medical report of recurrent back pain and the Veteran's credible lay reports of continuous symptoms since active service demonstrates the likelihood that his current degenerative disc disease was incurred in active service. The negative VA opinion does not adequately address the Veteran's credible lay statements, and is therefore less persuasive. In light of the objective evidence mentioned above the Veteran's credible reports of continuous lower back pain since service constitutes the most persuasive evidence in support of his claim. See Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011). In sum, when resolving reasonable doubt in the Veteran's favor, the elements of service connection have been met. There is credible lay and medical evidence of record that supports the Veteran's contentions that his current lumbar spine disability is linked to service. Service connection for this disability is therefore granted. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ryan, 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.