Citation Nr: 1754131	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  13-34 914	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUE

Entitlement to service connection for low back disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

W. Yates, Counsel


INTRODUCTION

The Veteran served on active duty from August 2002 to February 2010.  He received the Combat Action Badge, among other awards and decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from             a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In July 2016, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of this hearing has been added to the record.


FINDING OF FACT

The Veteran's current low back disability, diagnosed as intermittent thoracolumbar strain and lumbar degenerative disc disease with L4-5 herniated nucleus pulposis, was incurred during active duty service.


CONCLUSION OF LAW

The criteria for establishing service connection for low back disability, diagnosed   as intermittent thoracolumbar strain and lumbar degenerative disc disease with L4-5 herniated nucleus pulposis, have been met.  38 U.S.C. §§ 1110, 1112, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).  The Board notes that tinnitus is not listed as a chronic disability under § 3.309(a). 

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 

Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  

Initially, the Board concludes that the Veteran has a current low back disability.  Specifically, the January 2013 VA examination of the spine listed diagnoses of intermittent thoracolumbar strain and lumbar degenerative disc disease with L4-5 herniated nucleus pulposis.

The Board also finds that the Veteran incurred a low back injury during his military service.  Having participated in combat, the Veteran's contentions 
that he injured his back attempting to move a jammed gun turret is conceded         as consistent with combat.  38 U.S.C. § 1154.  Moreover, his service treatment records document his having sought treatment for complaints of back pain and lumbar strain.
Based upon a longitudinal review of the evidence of record, the Board concludes that the Veteran's current low back disability cannot be reasonably disassociated from his active duty service.  In making this determination, the Board finds the statements and testimony provided by the Veteran to be competent and credible evidence.  Specifically, he reported having ongoing problems with his low back ever since his discharge from military service.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Jandreau v. Nicholson, 492 F.3d. 1372, 1377 n.4 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms).  The Board also finds that the objective lay evidence of record largely supports the Veteran's contentions herein.  Specifically, his service treatment records show complaints of and treatment for low back pain and lumbar strain.  Moreover, post service treatment reports show treatment for these same complaints within the first post service year.  Finally, his current low back disability, diagnosed as intermittent thoracolumbar strain and lumbar degenerative disc disease with L4-5 herniated nucleus pulposis, was diagnosed on his very first comprehensive spine examination in January 2013.

Resolving all doubt in favor of the Veteran, service connection for a current           low back disability, diagnosed as intermittent thoracolumbar strain and lumbar degenerative disc disease with L4-5 herniated nucleus pulposis is warranted.  38 C.F.R. §§ 3.102, 3.303(b).


ORDER

Service connection for low back disability, diagnosed as intermittent thoracolumbar strain, lumbar degenerative disc disease with L4-5 herniated nucleus pulposis, and meralgia paresthetica, is granted.



_________________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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