Citation Nr: 1623924	
Decision Date: 06/15/16    Archive Date: 06/29/16

DOCKET NO.  13-19 905	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for a lumbosacral strain.

2.  Entitlement to service connection for lumbar spine degenerative joint disease (DJD).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Mishalanie, Counsel



INTRODUCTION

The Veteran served on active duty from November 1999 to April 2000, October 2004 to January 2006, and September 2008 to January 2009 in the United States Army.  She also had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Army Reserve.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  

The Board notes that additional evidence has been received since the Agency of Original Jurisdiction's (AOJ's) September 2014 supplemental statement of the case (SSOC).  In October 2014, the Veteran submitted a September 2014 letter from Dr. N.B. (initials used to protect privacy).  In March 2015, she submitted a September 2014 physical profile for low back pain and bilateral foot pain.  However, since the Veteran's substantive appeal was received after February 2, 2013, the Board is no longer required to obtain a waiver of initial review by the AOJ.  See § 501 of the Honoring America's Veterans Act, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of the substantive appeal, unless the claimant or claimant's representative requests in writing that the AOJ initially review such evidence.)

This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA paperless claims processing systems.  Any future consideration of this Veteran's case must take into account the existence of these electronic records.

The issue of entitlement to service connection for lumbar spine DJD is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDING OF FACT

The evidence of record reflects that the Veteran's lumbosacral strain was incurred during active duty service.


CONCLUSION OF LAW

Lumbosacral strain was incurred in active duty service.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that her low back disorder manifested during active duty service and is causally related to her military postal duties, which included heavy lifting.

Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service.  Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). 

Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service.  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  If shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  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.  However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b).  A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)."  Walker, 708 F.3d at 1337.

Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).

With regard to lay evidence, medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and the Veteran's military service.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology 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.  Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation.  Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).  For instance, a layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet.  See 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 310; Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  In contrast, a layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma.  See 38 C.F.R. § 3.159(a)(1); Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Therefore, the Board must assess the competence and credibility of lay statements.  Barr, 21 Vet. App. at 308.

In this case, the first and second elements of service connection have been met.  The medical evidence indicates that the Veteran has a current disability.  The August 2014 VA examiner diagnosed lumbosacral strain and mild lumbar spine DJD.  See Virtual VA, CAPRI records received on August 4, 2014, pgs. 2, 8.  In addition, the Veteran has submitted various lay statements supporting the fact that her military duties involved heavy lifting and that she had back pain during service.  See, e.g., August 2011 notice of disagreement (NOD); March 2011 statement from B.R.; April 2014 statement from A.S.  Her DD 214s indicate that she served in military postal division, which is consistent with her reports that she had to lift heavy parcels and footlockers, and load and unload mail from trucks.  See August 2011 NOD, July 2013 VA Form 9.  The Board finds that these lay statements are both competent and credible evidence of an in-service incurrence of an event, disease, or injury.  

Thus, the remaining question is whether the Veteran's lumbosacral strain and lumbar spine DJD are etiologically related to her duties during active service or any symptomatology therein.  In this regard, the evidence linking lumbosacral strain with active service is sufficient to establish service connection.  However, as additional development is needed to determine whether lumbar spine DJD is related to active service, this issue will be addressed in the remand section of this decision.  

In this case, although the Veteran has submitted portions of her service treatment records, a complete copy of her records has not been obtained.  In a May 2011 letter, Dr. J.H. stated that he had been treating the Veteran for low back pain since March 2011.  It was noted that the Veteran reported that the pain worsened during strenuous physical activities, such as lifting and bending during exercises.  A May 2011 treatment record indicates that the Veteran reported that her back pain had gone from bad to severe and that it got worse during training.  The diagnosis was lumbar strain.  

A May 2011 treatment record from Keller Army Community Hospital indicates that the Veteran twisted her ankle during active training.  It was also noted that she had increasing low back pain for two years, that she was under the care of a civilian physician who prescribed physical therapy, and that a magnetic resonance imaging (MRI) had been normal.  A June 2011 treatment record indicates that she had chronic intermittent back pain since 2005 and that the pain had worsened since 2008.  

A November 2013 MRI of the Veteran's lumbar spine showed mild degenerative changes.  

An August 2014 VA examiner diagnosed lumbosacral strain and mild DJD.  The examiner opined that the Veteran's lumbar strain seemed the same (as in service) and was brought on by her job duty while on active duty, i.e., moving mail that could be heavy.  In an addendum opinion, the examiner opined that it was at least as likely as not that the Veteran's lumbar strain was incurred in or caused by the claimed in-service injury, event, or illness.  The Board finds the examiner's opinion probative as it was based on a review of the claims file and consideration of the Veteran's reported history and contentions.

In a September 2014 letter, Dr. N.B. noted the Veteran's complaints of back pain and the November 2013 MRI showing evidence of facet hypertrophy at L4-L5 and L5-S1 with some mild loss of signal at L2-L3 and L3-L4.  It was noted that the Veteran served in a military post office in 2005 and lifted 70-80 pound packages 10 hours a day without any type of back brace.  The physician opined that her complaints and MRI "could be secondary to the work she did in the military, although without previous imaging, [he could ]not say for certain."  The Board finds that Dr. N.B. is competent to provide an opinion regarding the etiology of the Veteran's low back pain; however, the opinion is equivocal and therefore has minimal probative value.  

The Board finds the Veteran's lay statements regarding the onset, continuity, and progression of her low back pain are competent and credible.  Her report that her back pain began during active service and has continued since then, supports the later diagnosis of a lumbosacral strain by a medical professional.  Lay statements from A.S. and B.R. also support the Veteran's contention that her back pain began during active service and has continued to bother her since then.  Thus, the lay evidence weighs in favor of establishing a nexus between her lumbosacral strain and service.  

In summary, the Board finds that the medical and lay evidence cited above permits application of the reasonable doubt doctrine.  Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for lumbosacral strain are met.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for lumbosacral strain is granted.  


REMAND

As noted above, in May 2011, it was noted that an MRI of the Veteran's spine was normal; however, a November 2013 MRI indicated that she had lumbar spine DJD.  Thus, although the Veteran reported that her back pain began during the period of active duty from October 2004 to January 2006, and worsened during the period of active duty from September 2008 to January 2009, the evidence indicates that DJD developed more than a year after these periods of active duty service - sometime between May 2011 and November 2013.  The record reflects that the Veteran has had periods of ACDUTRA and INACDUTRA in the Army Reserve; however, the dates of such service have not been verified and her service treatment records have not been obtained.  

Although the AOJ sent the Veteran's Reserve unit two requests for her records that went unanswered, VA has a duty to make as many requests as are necessary to obtain relevant records from a Federal department or agency.  VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile.  Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them.  See 38 C.F.R. § 3.159(c)(2) (2015).  Therefore, a remand is required to verify the Veteran's service and to obtain her service treatment records.

In addition, the Veteran has indicated that she receives ongoing treatment for her low back pain from a private physician, Dr. H.  On remand, another attempt should be made to obtain these records.

Finally, the Board finds that another VA examination is necessary to make a determination on this claim.  Although the August 2014 VA examiner opined that the Veteran's lumbar spine DJD was not etiologically related to her military duties and was more likely age-related, the examiner did not provide an opinion as to whether her DJD manifested during a period of active service or within a year of separation from active service, or whether her lumbar spine DJD was caused or aggravated by her now service-connected lumbosacral strain.  Therefore, another VA examination is needed and any additional evidence obtained should be considered.

Accordingly, the case is REMANDED for the following actions:

1.  The AOJ should contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), the Veteran's unit, and any other appropriate location, to request the complete service personnel and treatment records of the Veteran.

The AOJ should also request verification of the dates the Veteran served in the Army Reserve, to include the dates of each period of active duty service, ACDUTRA, and INACDUTRA.  The AOJ should prepare a summary of such dates.  

2.  The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for her low back, to include Dr. H.  After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file.

The AOJ should also obtain any outstanding VA treatment records, including from the East Orange VA Medical Centers.  

3.  After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of her lumbar spine DJD.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. 

The Veteran has contended that her low back pain began during active duty service and is related to her military postal duties, which involved lifting heavy packages and footlockers and loading and unloading mail from trucks.  A May 2011 private treatment record noted that a MRI of her spine was normal.  A November 2013 MRI indicated that she had lumbar spine DJD.  

It should be noted that the Veteran is competent to attest to factual matters of which she had first-hand knowledge.  If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation.

After examining the Veteran and considering her pertinent medical history and lay statements regarding her reported symptoms, the examiner should opine as to whether it is at least as likely as not that lumbar spine DJD manifested during a period of active service, manifested within one year of a period of active service lasting 90 days or more, or is otherwise causally or etiologically related to her active service.  

The examiner should also opine as to whether it is at least as likely as not that lumbar spine DJD was caused or aggravated by (that is, caused a permanent increase in severity that is beyond the normal progression of the disease) the Veteran's service-connected lumbosacral strain.  

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  As it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or, in the alternative, the entire claims file, must be made available to the examiner for review.

4.  After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs.  

5.  When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence.  If any benefit sought is not granted, the Veteran should be furnished an SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs