Citation Nr: 18123936
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-12 077A
DATE:	August 3, 2018
ORDER
Service connection for a low back disorder, to include degenerative joint and disc disease, is granted.
FINDING OF FACT
The Veteran’s current low back disorders of degenerative joint and disc disease are of service origin.  
CONCLUSION OF LAW
Resolving reasonable doubt in the Veteran's favor, lumbar degenerative joint/disc disease was incurred inservice.  38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran, who is the appellant, had active service from September 1962 to September 1982.  
The Veteran appeared at a hearing before the undersigned Veterans Law Judge in February 2018.  A transcript of the hearing is of record.  
Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131.  Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 
It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 3.102.
Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). 
Lay evidence can be competent and sufficient evidence of a diagnosis 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.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau.
In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  Caluza v. Brown, 7 Vet. App. 498 (1995).
As it relates to the back, the Veteran has lumbar degenerative joint disease, which is the equivalent of arthritis and a chronic disease listed under 38 C.F.R. § 3.309(a).  Therefore, 38 C.F.R. § 3.303(b) applies in this case as it relates to this issue.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b). 
Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from 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.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.  
The Veteran maintains that his current low back disorders had their onset in service and are related to the duties he performed as a security officer in the service for twenty years, which included wearing heavy equipment on a daily basis.  He maintains that his current back problems had their onset in service and have continued to the present day.  
The Veteran’s service treatment records contain no complaints or findings of low back problems.  However, in August 1979, the Veteran was diagnosed as having sciatica in conjunction with complaints of left hip pain.  On his April 1982 report of medical history, the Veteran indicated that he had no recurrent back pain.  Normal findings for the spine and lower extremities were reported at the time of the Veteran’s April 1982 service separation examination.  
The Veteran was seen with complaints of low back pain in October 1983.  At that time, a diagnosis of low back strain was rendered.  In May 1989, the Veteran was again seen with complaints of left hip pain.  X-rays taken at that time revealed osteophytic changes of the lumbar spine.  
In conjunction with his claim, the Veteran was afforded a VA examination in June 2014.  At that time, the examiner reported that the Veteran indicated that his back pain started after service when lifting his grandson.  He noted having physical therapy without much relief. 
Following examination of the Veteran, the examiner indicated that the Veteran’s thoracolumbar spine arthritis was less likely due to service.  
He indicated that his opinion was based upon a review of the Veteran’s service treatment records.  In addition, the examiner noted that the Veteran reported that his back pain started after service after lifting his grandson.  The examiner indicated that there was no evidence that the Veteran was treated for a back condition during service.  He cited to medical examination performed in October 1975 and January 1979, which he mistakenly indicated was the Veteran’s separation examination.
In his October 2014 notice of disagreement, the Veteran indicated that although his military records did not show him being treated for back problems while he was on active duty, he believed that his back problems began in service.  He noted that during basic training he was required to be on foot patrol for 8 hours per day with only 15-minute breaks.  He further indicated that the equipment that he had to carry consisted of a web belt, M2 carbine, canteen, and a large radio.  He was also issued heavy clothing which added additional weight.  He stated that throughout his career he was assigned similar duties with similar equipment up until his assignment in Viet Nam, where a heavy flak jacket, M16 rifle, ammo, and more, were added.  He reported that he was treated at the Philadelphia Navy Base Hospital for back problems.  He also stated that he was continuing to receive treatment for his back problems and that he continued to experience back pain. 
At the time of his February 2018 hearing, the Veteran again reported the duties he performed in detail and as to having had back pain during and since service.  He again indicated that his duties entailed a lot of walking and carrying heavy equipment.  
Subsequent to his hearing, and in support of his claim, the Veteran submitted an April 2018 letter from his treating physician, L. N., M.D., who indicated that the Veteran had been a patient since 1999.  He noted that the Veteran’s lumbar spine issues, namely his degenerative disc disease and disc herniations, were the result of chronic wear and tear on his back that had taken place during the course of his lifetime.  He stated that it was extremely likely, and clearly probable, that the Veteran’s responsibilities in the military, being highly repetitive, and physical in nature, certainly had contributed to the cumulative trauma on his lumbar spine.  
The Board does note that service treatment records do not contain any complaints or findings of low back problems during the Veteran's period of active service, nor were there any reports of back problems noted on his entrance examination or on his April 1982 service separation examination.  However, the Board does observe that the Veteran has provided competent and credible testimony that his back began to hurt while in service.  Moreover, the Veteran's assigned military occupational specialty would support the duties he indicated that he performed in service and the equipment he was required to carry for extended periods of time.  
Furthermore, the Board finds that the medical opinions of record are in equipoise.  While the VA examiner indicated that it was less likely than not that the Veteran’s back problems started in service, the rationale provided did not address the Veteran’s contentions throughout the record of the duties he performed in service and his reports of continuous back pain from service until the present.  In addition, the examiner cited to incorrect service treatment records, including the wrong examination for retirement, when rendering his opinion.  The Veteran’s private physician, who has treated the Veteran for numerous years, indicated that it was extremely likely, and clearly probable, that the Veteran’s responsibilities in the military, being highly repetitive and physical in nature, certainly had contributed to the cumulative trauma on his lumbar spine.  The opinion is supported by the duties that the Veteran performed in service for twenty years.  
For these reasons, and after resolving reasonable doubt in the Veteran's favor, the Board finds that he injured his low back in service and has experienced "continuous" symptoms of a back disorder, now diagnosed as degenerative joint and disc disease of the lumbar spine, since service separation.  As such, the criteria for presumptive service connection for lumbar degenerative joint/disc disease under 38 C.F.R. § 3.303(b) based on "continuous" post-service symptoms, have been met.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
 
K. PARAKKAL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. S. Kelly, Counsel 

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