Citation Nr: 22013829 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 17-34 407 DATE: March 10, 2022 ORDER Entitlement to service connection for a low back disability, diagnosed as degenerative disc disease, spondylolisthesis, and arthritis of the lumbar spine, is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his low back disability, diagnosed as degenerative disc disease, spondylolisthesis, and arthritis of the lumbar spine, had its onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability, diagnosed as degenerative disc disease, spondylolisthesis, and arthritis of the lumbar spine, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from May 1989 to May 1993 and from September 1994 to December 1994, with additional service in the Marine Corps Reserve. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ's determination, and the present appeal ensued. The Veteran's claim has previously been before the Board in September 2019 and September 2021, when it was remanded for further development. Entitlement to service connection for a low back disability Service connection may be established for a disability resulting from personal injury that is suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010). If a chronic disease, such as arthritis is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran has asserted that his low back disability is due to the wear and tear he experienced during active service, including as the result of parachute jump exercises and also jumping down off tanks in full combat gear. In a March 2018 radiological report, the results indicated spondylolisthesis with severe disc disease. A March 2020 VA examination indicated the Veteran's diagnosis to be degenerative arthritis of the lumbar spine, spondylolisthesis. While the Veteran's service treatment records do not contain instances of complaints or treatments for low back pain, the Veteran's military occupational specialties were parachute/scuba marine, food service specialist, and basic tank and amphibious vehicle crewman. The Veteran's various specialties indicate the type of labor the Veteran experienced are consistent with his contentions regarding his injuries. Additionally, the Veteran's service treatment record includes a treatment note for a left ankle injury in June 1991, while the note does not specifically address a back injury, the note indicated the Veteran had recently returned from jump school, where he experienced several rough landings. The Board finds that based on the above, the first two elements required to establish service connection, a current diagnosis, and an in-service injury, event, or illness are met. The Board will review the evidence relating to the final element needed to establish service connection, a nexus between the current diagnosis and the in-service incurrence. In doing so, the Board notes that certain chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis and diseases of the nervous system, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Pursuant with the September 2021 Board remand instructions, the Veteran was afforded an additional VA medical opinion in October 2021. The examiner noted that the Veteran's first claim for a low back disability was years after his discharge from active duty, and his service treatment records are absent for complaints or treatment. The examiner concluded that the Veteran's current back disability was more likely due to obesity, and normal wear and tear of the aging process. The Board finds the unfavorable medical opinion to be afforded little probative value, as the examiner relied on a lack of in-service treatment or complaints, and the time lapse between service and the Veteran's first complaint of a low back disability. While the examiner did provide a general etiology of the Veteran's disability, the examiner did not appear to consider the Veteran's lay statements of continuity of symptomatology. While no specific medical nexus opinion has been provided by the Veteran's private provider, the Veteran's private medical treatment records address the Veteran's airborne experience in relation to his current low back disability. A private treatment note in July 2018 indicates that the Veteran's airborne experience "may have caused" his low back disability. In an August 2018 note, the Veteran reported he had low back pain from his airborne jumps. Additionally, the Veteran has repeatedly asserted that his low back symptoms began during and have persistence since his service. In a June 2017 statement the Veteran indicated that the lack of service treatment records for his low back disability is due to the nature of the location he sustained injuries as when he sufferance injuries during this training, he was treated in the field hospital, with Motrin. The Veteran stated that as medical record books were not present in the field, there is no documentation of injury or treatment related to the jump training. The Veteran indicated that the during the jump training broken legs, sprained ankles, and back injuries were common among service members. The Veteran's service treatment record, while not addressing a back disability, does note the Veteran sought treatment for an ankle disability in June 1991 after returning from jump school, where he had a couple of rough landings. Additionally, the Veteran described further back trauma as a tank commander, having to jump on and off tanks in full combat gear; treatment for injuries sustained as a tank commander was with Motrin for pain. The Veteran submitted a statement in March 2018, indicating that he had been experiencing longstanding low back pain, starting at his discharge from active duty. As arthritis and diseases of the nervous system are chronic diseases, service connection may be granted under a theory of chronicity and continuity of symptomatology. 38 C.F.R. §§ 3.303(a), 3.303(b), 3.309(a); Walker v. Shinseki,708 F.3d 1331 (Fed. Cir. 2013). Although medical evidence is generally necessary for a nexus to service, lay evidence can be sufficient to show continuity of symptoms after service, as a foundation for a nexus opinion, to link chronic in-service symptoms to the same diagnosed current chronic disability, or as a substitute for a nexus. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the Veteran's service is consistent with the type of injuries he has asserted he sustained during active service, and his service treatment records include documentation of rough landings that were related to jump camp. The Veteran has competently and credibly maintained his in-service back injuries and the symptoms he has sustained since. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for a low back disability, diagnosed as degenerative disc disease, spondylolisthesis, and arthritis of the lumbar spine, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.