Citation Nr: 22015199 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 19-22 696 DATE: March 16, 2022 ORDER Service connection for degenerative arthritis of the lumbar spine (claimed as a back condition) is granted. The appeal concerning entitlement to service connection for right upper extremity tremors is dismissed. The appeal concerning entitlement to service connection for left upper extremity tremors is dismissed. The appeal concerning entitlement to service connection for a traumatic brain injury is dismissed. The appeal concerning entitlement to service connection for cognitive issues, claimed as secondary to traumatic brain injury, is dismissed. The appeal concerning entitlement to service connection for degenerative arthritis of the cervical spine, claimed as secondary to traumatic brain injury, is dismissed. REMANDED Entitlement to service connection for a right inguinal hernia is remanded. FINDINGS OF FACT 1. The evidence supports a finding that the Veteran has a back disorder that is related to service. 2. In February 2022, prior to the promulgation of a decision on the issues, the Veteran withdrew the appeal for the issues of entitlement to service connection for right upper extremity tremors, entitlement to service connection for left upper extremity tremors, entitlement to service connection for a traumatic brain injury, entitlement to service connection for cognitive issues, claimed as secondary to traumatic brain injury, entitlement to service connection for cognitive issues, claimed as secondary to traumatic brain injury, and entitlement to service connection for degenerative arthritis of the cervical spine, claimed as secondary to traumatic brain injury. CONCLUSIONS OF LAW 1. Degenerative arthritis of the lumbar spine was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for withdrawal of a Substantive Appeal as to the issues of entitlement to service connection for right upper extremity tremors, entitlement to service connection for left upper extremity tremors, entitlement to service connection for a traumatic brain injury, entitlement to service connection for cognitive issues, claimed as secondary to traumatic brain injury, entitlement to service connection for cognitive issues, claimed as secondary to traumatic brain injury, and entitlement to service connection for degenerative arthritis of the cervical spine, claimed as secondary to traumatic brain injury, have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1966 to April 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal from a March2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. On his July 2019 Substantive Appeal, VA Form 9, the Veteran requested a videoconference hearing. In February 2022, he subsequently withdrew his request for a Board hearing. As such, there are no pending hearings before the Board. In June 2019, the RO granted the Veteran's claims of entitlement to service connection right inguinal surgical repair scar and entitlement to service connection for bilateral hearing loss. The Veteran did not file a timely notice of disagreement for the assigned evaluations or the assigned effective dates, and those claims are no longer before the Board. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. In February 2022, the Veteran submitted a statement indicating that he wished to withdraw the appeals of the issues of entitlement to service connection for right upper extremity tremors, entitlement to service connection for left upper extremity tremors, entitlement to service connection for a traumatic brain injury, entitlement to service connection for cognitive issues, claimed as secondary to traumatic brain injury, entitlement to service connection for cognitive issues, claimed as secondary to traumatic brain injury, and entitlement to service connection for degenerative arthritis of the cervical spine, claimed as secondary to traumatic brain injury. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, these issues are no longer for appellate consideration. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154; 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) 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Where a chronic disease under 38 C.F.R. § 3.309 (a) is "shown as such in service" or in the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). If a condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. For listed chronic conditions, 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is considered competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cri. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). 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 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the more persuasive evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for degenerative arthritis of the lumbar spine (claimed as a back condition) Service treatment records document that the Veteran complained of back pain multiple times during service. In December 1966, there is evidence of treatment for a backache. Then, in June 1968, he complained of low back pain and muscle spasms and was subsequently diagnosed with back strain. He was also seen for back pain in June 1969 and placed on light duty. The Veteran received a VA examination in July 2014 and the examiner noted a diagnosis of degenerative arthritis of the lumbar spine. The Veteran reported "picking up a car" during service after a tidal wave with four other servicemen. He had pain in the right buttock that was present for a month or two then went away; the pain, however, returned whenever he lifted something. Based on the results of the examination, the examiner concluded that the condition was less likely than not caused by service, as the service treatment record showed a few scattered visits for back pain but no evidence for ongoing chronic symptoms. The Veteran reported being hit by a car in 1996 after which he underwent back surgery and there was also evidence of a back condition following a bike race in 2006. As a result, the examiner concluded that the Veteran's post-service activities and accidents were most likely responsible for the current back condition. The Veteran submitted a statement in July 2019 that he did heavy labor without safety equipment during service, and lifting heavy materials caused his back injury. The Veteran's spouse submitted a statement in February 2022 that the Veteran had low back issues since the late 1970s/early 1980s. He began to see chiropractors at that time and was "doing well until a car accident in 1996." Currently, the Veteran had to be careful with his back and complain of mild low back pain multiple times per week. Arthritis is a chronic disease for which service connection may be granted under a theory of chronicity and continuity of symptomatology. 38 C.F.R. §§ 3.303 (a)(b), 3.309(a); Walker v. Shinseki,708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b); Savage v. Gober, 10 Vet. App. 488 (1997). The Board will resolve reasonable doubt in the Veteran's favor and find that service connection for degenerative arthritis of the lumbar spine is warranted. At the outset, the VA examiner's negative nexus opinion is premised on a finding of "no evidence for ongoing chronic symptoms" of a back condition during service. However, there are numerous visits documented of back pain, and an in-service diagnosis of back strain. The Veteran has stated that the onset of his of his symptoms occurred during active service and continued after service and the Board finds he is competent to make such statements. The Board finds that the Veteran's statements are credible, and they are supported by the medical evidence set forth above, including his documented in-service injuries and complaints of back pain, medical records, and his lay statements. While there is evidence of injuries subsequent to service, the Board finds that the medical evidence is sufficient to conclude that the Veteran suffered from a back condition for decades prior to the earliest post-service injury in 1996. In sum, 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 was diagnosed during service with back strain. The Veteran has competently and credibly reported low back pain ever since, which has been corroborated by objective medical findings and diagnoses. Service treatment records, VA treatment records, and private treatment records document chronic, low back pain since service, diagnosed through imaging as degenerative arthritis of the lumbar spine. The Board finds that the Veteran has shown a continuity of symptomatology of his low back disorder from service to the present that may substitute for a nexus in this case. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for a lumbar spine disorder, diagnosed as degenerative 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). REASONS FOR REMAND Entitlement to service connection for a right inguinal hernia In the March 2015 rating decision, the RO denied service connection for a right inguinal hernia. The Veteran submitted a notice of disagreement with respect to the claim in November 2015. As a timely notice of disagreement has been received, the Veteran has initiated an appeal respecting the claim, and VA has a duty to issue a statement of the case as to the issue. The claim, therefore, must be remanded for compliance with 38 C.F.R. § 19.9(c) and Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: Send the Veteran and his representative a statement of the case that addresses the issue of service connection for a right inguinal hernia. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.