Citation Nr: 22016430 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 18-44 748 DATE: March 22, 2022 ORDER Entitlement to service connection for a low back disability, diagnosed as degenerative disc disease 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 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 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 from November 1982 to March 1983. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2017 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. In October 2021, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of the hearing is associated with the electronic claims file. Entitlement to service connection for a low back disability, diagnosed as degenerative disc disease of the lumbar spine 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 lumbar spine degenerative disc disease is due to the wear and tear he experienced during active service from repetitive heavy lifting. January 2016 magnetic imaging and earlier private medical treatment records confirm a diagnosis of degenerative disc disease of the lumbar spine. While the Veteran's service treatment records do not contain documentation of an in-service injury, the Veteran's military occupational specialty was infantryman. The Veteran's specialty indicates the type of labor the Veteran experienced is consistent with his contentions regarding is low back disability developing due to repetitive heavy lifting. The Veteran's post-separation employment did not include heavy lifting. 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). In June 2016 the Veteran provided a disability benefits questionnaire from his private provider. While no specific medical nexus opinion was provided, the Veteran's provider noted that the Veteran had reported his low back disability had been an ongoing condition for some time. Additionally, the Veteran's private medical records contain numerous instances of documented complaints and treatment of a low back disability, having been diagnosed as degenerative disc disease, from December 2020 to the present. In January 2016, private treatment records indicate his medical history included low back pain caused by repetitive heavy lifting. The Veteran has consistently and credibly maintained that his low back disability began in service and has continued since. During his February 2021 hearing, the Veteran stated that his disability began during basic training in 1982 and has persisted since. The Veteran further asserted that his disability was caused by carrying heavy equipment and when he initially sought treatment in 1982, he was informed that it would not be treated. 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. Additionally, the Veteran has competently and credibly maintained his in-service back injuries and the symptoms he has sustained since, which have been further documented through private treatment records. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for a low back disability, diagnosed as lumbar spine degenerative disc disease, is therefore 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.