Citation Nr: 22015937 Decision Date: 03/20/22 Archive Date: 03/20/22 DOCKET NO. 15-16 579 DATE: March 20, 2022 ORDER Entitlement to service connection for degenerative arthritis of the lumbar spine is granted. FINDING OF FACT The Veteran has a diagnosis of degenerative arthritis of the lumbar spine and has experienced symptoms since service. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative arthritis of the lumbar spine are met. 38 U.S.C. §§ 1112, 1113, 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1971 to December 1974. In July 2017, the Veteran testified under oath at a travel board hearing before the undersigned Veterans Law Judge. Also present at the hearing was the Veteran's son. A transcript of the hearing is of record. In October 2017, the Veteran passed away, and in January 2018, the Board dismissed the appeal. In July 2018, the Board denied the appellant's motion for reconsideration. In May 2020, the appellant was granted substitution and she is now the claimant in this appeal. In July 2021, the appeal was remanded for additional development. Service Connection For the reasons outlined below, the Board finds that the Veteran meets the criteria for service connection. Legal Criteria Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Evidence and Analysis At the outset, the Board notes that the Veteran had a diagnosed disability of degenerative arthritis of the lumbar spine. See VA examination report, September 2011. The Veteran contended that he sustained an injury in service, and that he has suffered from back pain since service. See Travel Board Hearing, July 2017. The Veteran's service treatment records indicate that he hurt his back carrying a field pack and that he had a low back strain. See STR, May 1973. The Board acknowledges, however, that the Veteran's separation examination shows normal spine and other musculoskeletal. See STR, November 1974. At the January 2015 DRO hearing, the Veteran indicated that he first hurt his back in 1973 and was given a week off. This contention was corroborated by the appellant, who was married to the Veteran at the time of his injury. See DRO Hearing, January 2015. Both the Veteran and the appellant indicate that the injury, occurred in while he was stationed in Germany. Id. Specifically, the appellant stated that the Veteran was fixing a flat on a truck. Id. The Board notes that the Veteran's military personnel records show that he served in Germany from June 1973 to December 1974. Further, a photograph of a truck is included in the record. See Photographs, January 2015. Although the Veteran sought treatment for the injury, he stated the following: "Back then ... you know ... what they say when you're in the military... take the pain, take the pain... so, you're young you have to take the pain, 'cause I... (inaudible)... rest of the guys laugh at you. So, you take the pain." See DRO Hearing, January 2015. The Veteran's spouse stated that the Veteran has "always been having problems since... since back in Germany." Id. At the DRO hearing, the Veteran acknowledged a post-service work injury, but indicated that he was hurt "again" at this time. Similarly, at the July 2017 travel board hearing, the Veteran explained that in service, he pulled his back while "changing the tires on a two-and-a-half-ton truck." See Travel Board Hearing, July 2017. The Veteran testified that he "fell on the ground" and "couldn't get up." Id. He then stated that he "went to the clinic and the doctor there gave me a week off." Id. The Veteran further indicated that he had back pains and problems since service. Again, while a post-service injury was noted, the Veteran indicated that prior to that accident, he experienced back pains and problems. Id. In addition to the above evidence, the Board notes an August 2010 "buddy" statement from the Veteran's brother-in-law, which states that the Veteran "has been suffering from back pains ever since he returned from being stationed in Germany." The Board finds that the Veteran's lay statements regarding the onset and continuity of his back pain to be competent and credible. First, the Veteran is competent to report on symptoms which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Therefore, his statements regarding pain in service and thereafter are competent. In addition, the Board finds them to be credible for the following reasons. First, the record supports an in-service injury. The Veteran's service treatment records note a low back strain. See STR, May 1973. The Board acknowledges that this treatment record refers to a field pack, and not a truck tire, as described by the Veteran. Further, the Board acknowledges that this May 1973 injury occurred prior to his service in Germany, which began in June 1973. Nevertheless, the Board points out that the documented injury does not preclude another injury later in service. That is, the two events are not mutually exclusive. In addition, regarding the truck tire injury, there is supporting evidence to include a photograph and the statements of the appellant. Finally, the Board finds persuasive the Veteran's description of the culture in service; he had to "take the pain" to avoid ridicule. See DRO Hearing, January 2015. Such contentions may explain a dearth of documented complaints of back pain in service. Accordingly, viewing the evidence in the light most favorable, the Board finds that the competent and credible evidence of record supports a finding that in-service injury occurred. Similarly, the Board also finds the Veteran's contentions regarding the continuity of his symptoms to be credible. Specifically, these contentions are supported by other lay statements of record. Both the appellant and the Veteran's brother-in-law have described symptoms since service. Given the above, the Board finds that the Veteran experienced an in-service injury and that he has experienced back pain since that time. The Board acknowledges the VA medical opinions of record. The Board has addressed the shortcomings of the September 2011, October 2020, and March 2021 VA opinions in prior remands, and incorporates those findings by reference. See BVA Decision/Remand, June 2020; and BVA Remand, July 2021. For the reasons cited in the prior Board decision/remands, these opinions are inadequate, and the Board affords them little probative weight. The Board also finds the November 2021 VA opinion to be inadequate for the following reasons. First, in the July 2021 remand, the Board asked that a new opinion address the Veteran's post-service injury. Specifically, the remand directed that the examiner address: "The possibility that a post-service injury may have aggravated an already existing back injury. (I.e., that the Veteran hurt himself 'again' post-service)." The Board does not see that the November 2021 VA opinion addressed this as requested. Further, in addressing the lack of evidence in the service treatment records, the November 2021 VA opinion states: "It is highly unlikely a significant lumbar spine condition would have gone unnoted or unreported. It is almost a certainty the veteran did not have significant degenerative spine disease at the time of separation from service." (Emphasis added). The Board highlights the VA opinion's use of the word "significant" because the Board finds this word to be ambiguous and irrelevant to the question of whether the Veteran had an in-service injury with continuity of symptoms that eventually led to his diagnosis. Further, the Board notes that the Veteran's diagnosis is "degenerative" arthritis, which by its name suggests a progressive worsening. Accordingly, the Veteran's in-service injury, by definition, was likely less severe than its later manifestation. In addition, the November 2021 VA opinion appears to place greater weight on the post-service injury without providing an adequate rationale. For example, the opinion states: The veteran's diagnosis, per the 2011 DBQ is degenerative spine disease, status post-laminectomy. Lumbar strain does not cause the veteran's diagnosed conditions. It is almost a certainty that the veteran's laminectomy was a result of a 1988 work-related injury. Lumbar strain is a soft tissue/muscular condition that does not involve the facets or the intervertebral spaces/discs. There was no evidence of such while in service. It would have been virtually impossible to continue active duty service with such injuries. Therefore, it is less likely than not that the veteran's current lumbar spine conditions, including degenerative spine disease, status post-laminectomy in 1990, are due to or incurred in the veteran's service, including the episode of lumbar strain. It is more likely than not that the veteran's currently diagnosed conditions had their nexus due to a work-related injury in 1988. The prior opinion on the 2011 DBQ documents the 1988 work-related injury. This is supported as well by a letter from Dr. ET dated 12/22/90. Any reports of onset in service with continuity since service are not supported by the medical evidence, which actually belies the claim. (Wheeless' textbook of Orthopedics) The Board assumes that the 2011 DBQ refers to the September 2011 VA examination report. Regarding diagnosis, that report states: "For the claimant's claimed condition of LOWER BACK CONDITION, The [sic] diagnosis is Degenerative arthritis of lumbar spine. The subjective factors are history of degenerative arthritis. The objective factors are X-ray findings of degenerative arthritis changes." While the diagnosis section also notes that there is "status post lumbar sacral laminectomy and fusion, with scars," this is separately listed and has separately discussed subjective and objective factors. However, the November 2021 VA opinion appears to conflate the two diagnoses (i.e., "The veteran's diagnosis, per the 2011 DBQ is degenerative spine disease, status post-laminectomy"). The November 2021 VA opinion then goes on to address the laminectomy specifically (e.g., "It is almost a certainty that the veteran's laminectomy was a result of a 1988 work-related injury."). However, it is unclear to the Board which part of the rationale applies solely to the degenerative arthritis. In addition, the opinion states that "[i]t is more likely than not that the veteran's currently diagnosed conditions had their nexus due to a work-related injury in 1988." However, the opinion does not discuss the circumstances, severity, or specifics of the Veteran's work-related injury. The Board acknowledges that the November 2021 VA opinion states that "[t]he prior opinion on the 2011 DBQ documents the 1988 work-related injury." As discussed above, the September 2011 VA opinion is inadequate. Nevertheless, even assuming that an inadequate opinion is to be relied upon, of the 1988 work-related injury, the September 2011 VA opinion states the following. In a treatment record from W.H.M.C. "it was noted the pain began after a work-related injury in 1988 resulting in a laminectomy and fusion and subsequent pain pump." Again, this language does not address degenerative arthritis, nor does it provide an explanation supporting why the work-related injury is more likely than not the cause of the degenerative arthritis. Given the above, the Board finds the November 2021 VA opinion to be inadequate and affords it little probative weight. Accordingly, the Board is left with a record that shows an in-service injury that resulted in continuity of symptoms and a diagnosis of degenerative arthritis. The Board acknowledges that a post-service injury occurred but finds that symptoms pre-existed that event. Resolving reasonable doubt in favor of the appellant, the Board cannot conclusively disassociate the Veteran's a diagnosed disability of degenerative arthritis of the lumbar spine from his service. Therefore, the Board finds that the criteria for service connection have been met. The issue is granted. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.