Citation Nr: 22018443 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 14-01 975 DATE: March 29, 2022 ORDER Service connection for a lumbar spine disability, diagnosed as degenerative arthritis, is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, he injured his lumbar spine during service, has experienced lumbar spine symptoms continuously since separation from service, and has been diagnosed with degenerative arthritis of the lumbar spine. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability, diagnosed as degenerative arthritis, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1133, 5107; 38 C.F.R. §§ 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1970 through April 1974 and from June 1975 through January 1992. In March 2017, the Veteran testified at a Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. In an April 2020 decision, the Board denied entitlement to service connection for a low back disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 Order, the Court granted a January 2021 Joint Motion for Partial Remand (JMPR) and vacated the Board's April 2020 decision to the extent it denied entitlement to service connection for a low back disorder and remanded the case to the Board for further action consistent with the terms of the JMPR. In June 2021, the Board remanded the case to the VA Regional Office (RO) for additional development; the claims file has been returned to the Board for adjudication. Entitlement to service connection for a lumbar spine disability, diagnosed as degenerative arthritis. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. § 3.303 (a). Generally, to establish a right to compensation for a present disability, the claimant must provide competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). Alternatively, 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 present disability and the post-service symptomatology under 38 C.F.R. § 3.303 (b); Barr v. Nicholson, 21 Vet. App. 303 (2007). Where a claimant asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, he can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a), including arthritis. Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Such chronic diseases are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1110, 1112, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a claimant is competent to report on that of which he or she has personal knowledge). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that his low back disorder was incurred in service. He testified at his March 2017 Board hearing that during his time on the flight deck during service, he was blown down by air from a large airplane and tumbled 600 yards down the flight deck and was thrown down the deck. He asserted that his low back pain had bothered him over the years but that he took medication. He also submitted an April 2012 statement detailing five separate occasions where he fell from the flight deck. His service treatment records dated in July 1981 demonstrate complaints of low back pain in connection with the removal of kidney stones. However, in September 1981, he had complaints of low back pain and findings of paravertebral tenderness, noted by the treatment provider to be seemingly musculoskeletal in nature. In November 1981, the Veteran reported low back pain with mild to moderate tenderness noted. Post-service treatment records dated in as early as June 2001 reflect chiropractic care for lumbar spine symptoms. During a January 2012 Disability Benefits Questionnaire (DBQ), the Veteran reported a sharp aching pain in the lumbar spine, different than his pain related to his kidney disability as such was higher. He asserted that such had been bothering him for 25 or 26 years and is progressively worse. He attributed his pain to in-service incidents falling from the flight deck. During an October 2019 DBQ, the Veteran reported his pertinent medical history as discussed above, noting that he did not complain of back pain over the decades as it did not "catch up with him" until after he was 50 years old. Imaging revealed arthritis. During an August 2021 DBQ, the Veteran reported his in-service injuries and asserted that his low back pain began after such. The VA examiners, in January 2012, October 2019, and August 2021, submitted negative etiological opinions citing the lack of evidence of low back injuries or treatment for chronic low back pain during service, the lack of evidence of continued post-service treatment for low back pain, the fact that the Veteran complained of low back pain during service coincident to kidney stones, and the fact that degenerative arthritis is common among the population the Veteran's age. The Veteran is competent to report that he has fell during service, injuring his back, and that he has experienced worsening back pain since that time. The Board finds no basis upon which to consider that he is not credible on these issues. Layno, 6 Vet. App. 465, 470; 38 C.F.R. § 3.159 (a) (2). In this regard, the Veteran has explained that he experienced low back pain from the time of separation from service to the present, using medication as needed, and did not complain of such, or did not seek treatment, for many years, until he was 50 years old. Thus, the VA examiners, during the course of the appeal, in January 2012, October 2019, and August 2021, did not properly consider the Veteran's lay assertions of in-service back injuries and/or symptoms and continued worsening back pain since separation from service; their etiological opinions are of little probative value. (Continued on the next page) Based on the forgoing, there is probative evidence of a current lumbar spine disability, diagnosed as degenerative arthritis, and resolving all doubt in favor of the Veteran, probative evidence of an in-service lumbar spine injury and progressively worse lumbar spine symptoms from the time of separation from service to the present. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1133; 38 C.F.R. § 3.309; Walker, 708 F.3d 1331, at 1337-39. The Board thus finds that service connection for a lumbar spine disability, diagnosed as degenerative arthritis, is warranted. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.