Citation Nr: 1631210 Decision Date: 08/05/16 Archive Date: 08/12/16 DOCKET NO. 13-10 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a left wrist disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from March 1983 to June 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The Veteran appeared and testified at a Board hearing before the undersigned Veterans Law Judge in May 2016. A transcript of the hearing is in the record. The issue(s) of entitlement to service connection for a left wrist disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his lumbar spine disability is a result of in-service injuries. CONCLUSION OF LAW Lumbar spine disability was incurred during active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by an April 2010 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Regarding VA's duty to assist, the Veteran's record contains his VA treatment records, service treatment records, and private treatment records that the Veteran identified. The Veteran was afforded a VA examination in June 2010 which included review of the record, interview and examination of the Veteran, and an opinion with supporting rationale. The Board concludes that all available evidence has been obtained and that there is sufficient evidence on file on which to make a decision on the issue decided on appeal. The Veteran has been given ample opportunity to present evidence and argument in support of his claim. All general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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 veteran 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.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The Veteran contends that he injured his low back in service, that the pain continued throughout service, and that his current low back disability is a result of his in-service injuries. Service treatment records include a December 1982 enlistment report of medical history and clinical evaluation. The Veteran did not report a history of a low back disability, and his clinical evaluation was normal. In November 1983, the Veteran reported low back pain for the past two weeks which occurred when getting up in the morning or after a long period of sitting. He was assessed with a pulled muscle. In May 1985, the Veteran was provided a periodic evaluation, where he was noted to have a normal evaluation of the spine. In June 1985, the Veteran reported back pain for the past 24 hours. . He dove for a ball during a softball game. He later described it as left back and flank pain. He was able to finish the softball game. He was assessed with muscle pain secondary to a "pull." In August 1988, the Veteran complained of low back pain for one day. He stated that "yesterday's exercise 'the crunch' started pain that radiated" from his low back to his gluteus maximus. He was referred for further evaluation. The Veteran was noted to be moving "stiffly." He was assessed with a lumbar spine strain and prescribed anti-inflammatory medicine. He was given a profile of no physical training and no lifting greater than 25 pounds for the next 72 hours. The record contains a May 1989 report of medical history and clinical evaluation. The Veteran denied recurrent back pain and he had a normal evaluation of the spine. Notably, the Veteran denied all options provided on the medical history worksheet. VA treatment records from November 2009 noted the Veteran's report of lumbar spine pain since military service. The Veteran did not file his claim for service connection for a lumbar spine disability until March 2010. During his June 2010 VA examination, the Veteran reported he injured his low back while stationed in Germany playing sports and again while in Fort Campbell, Kentucky when coming off a helicopter. He reported his pain has gotten worse over time, and is now constant. The examiner cited the November 1983 treatment record, June 1985 record, August 1988 record, and the evaluations from May 1985 and May 1989. The examiner additionally noted that on his report of medical history from May 1989, the Veteran marked "no" for recurrent back pain and his separation physical was silent regarding any low back issues and his spine examination was marked as normal by the examiner. An x-ray showed moderate narrowing of the L4-5 and L5-S1 disc interspaces with considerable degenerative changes at these levels. "These changes could be related to old trauma" was noted seemingly by whoever read the x-rays. Based on the x-rays, the examiner diagnosed degenerative disc disease of the lumbar spine. The examiner opined that the Veteran's low back disability was less likely than not caused or aggravated by his service. The examiner felt that the records did "not demonstrate a chronic lumbar spine condition." The Veteran's complaints of acute and temporary low back pain resolved without objective evidence of chronic residuals was noted to be shown by a silent separation examination and no evidence of complaints or treatment for his lumbar spine in close proximity to separation from service. On his VA-9 the Veteran stated that he injured his back at Fort Steward, Georgia, and that x-rays were taken. He stated he was put on light duty for two months. He was "young and strong" in service and the pain did not bother him, but as he has gotten older and weaker, his body hurts more. During his March 2016 Board hearing, the Veteran testified that he injured his back twice in service. Once while performing crunches during physical training and once while playing football in Germany. He stated he low back pain continued from his first injury in 1983 throughout service to 1989. Regarding his notation that he did not have recurrent back pain on his discharge physical, the Veteran stated that he did continue to have back problems but that he was "young, strong...always ready to go, but as time went on, age caught up" with him. The Veteran's representative indicated that the Veteran stated that he was "all right" at separation so that he would not have to stay any longer. The Veteran stated he received treatment within a year or two from discharge for his low back pain, from a chiropractor in Georgia. When asked about the date of that treatment, the Veteran indicated around 1993 or 1994. He sought treatment in 1993 because his back would "lock up" on him. The Veteran stated that his early treatment records were not available because that physician or chiropractor "moved out," and so his records were unavailable. He reported that he has told treating physicians that his low back pain is the same as he had in service, but that his treatment providers have noted that his current pain is due to arthritis. The Veteran felt that it was the "same pain." In May 2016, the Veteran's representative provided a statement from a private treatment provider. Dr. R.C.M. provided a stated that he had reviewed the Veteran's records and based on that information the Veteran's "medical problems may be related to the injury he sustained to his lower back while in the military." Although the Board notes that the Veteran reported different incidents of the causes of his injuries, playing basketball or football, stepping out of a helicopter and doing crunches. The Board notes that, with the exception of the helicopter incident, the Veteran's service treatment records support that he injured himself doing crunches and playing sports. In fact, his service treatment records show that he injured his wrist, shoulder, ankles, knees, hand/foot, and back while playing basketball, football and softball. Therefore, it is understandable that the Veteran was not entirely sure of his location or the sport being played when he reported his injuries to his back. Given the Veteran's statements and a review of his service treatment records, the Board finds his statements as to the cause of his injuries to be credible. Turning to the separation examination where the Veteran reported that he did not have recurrent back pain, and his explanation that he marked that negative answer so that he could leave without further medical evaluation. The Board notes that on his separation medical history report the Veteran marked negative all options on the worksheet, despite a large volume of service treatment records regarding his skin condition, and various treatment records for physical injuries, including several for his right knee. Additionally, the clinical evaluation did not mention the Veteran's ongoing right knee or visible skin condition. Therefore, it is credible that the Veteran's negative response on his separation medical history was not accurate. The record currently contains two conflicting medical opinions. The difficulty of this decision rests on the period of time between the Veteran's separation from service and his first available treatment records in 2009. The 2010 VA examiner found that the Veteran's acute injuries in service did not result in his current spine symptoms because he did not have a diagnosed disorder or complain of symptoms during his separation examination, and there was no indication of treatment for 20 years. The private physician reviewed the same service treatment records and VA treatment records and found that the Veteran's current medical problems may be related to his in-service injuries. The Board has noted that the Veteran's negative history and evaluation at separation did not appear to correlate to his ongoing treatment records in service. As such, the Board will resolve reasonable doubt in the Veteran's favor and finds that entitlement to service connection for a low back disability is warranted. ORDER Entitlement to service connection for a low back disability is granted. REMAND In 1983, the Veteran presented to the emergency room complaining of a left wrist injury. He reported he was playing football when he fell to the ground and caught his body weight on his left arm. He reported a history of "bruised ligaments" in his left wrist three years prior. He was assessed with a left wrist sprain and given a volar splint. X-rays were noted to be negative. The splint was continued and the Veteran was told not to use his left arm for five days. In June 2010, the Veteran was afforded a VA examination. The examiner noted the above in-service record, but that "x-rays taken at the time were negative for injury/trauma/fracture. The examiner opined that the Veteran's degenerative changes of the left radiocarpal joint and ganglion cyst with surgical removal were less likely than not caused or aggravated by his service because the examiner noted there was no objective evidence of further evaluation or treatment for any chronic left wrist condition, and the May 1985 and May 1989 evaluations showed a normal upper extremity examination and in May 1989 the Veteran did not report a history of bone or joint deformity. A separate September 1983 record of the x-ray report indicated that there was a "well defined bony fragment in the ulnar and distal aspect of the left lunate bone. This is very doubtful for a fracture and this probably represents a hypolunate sesamoid bone. No other significant abnormality seen." The June 2010 examiner did not comment on whether the hypolunate sesamoid bone was likely a result of the Veteran's in-service left injury, and whether it may have resulted in the Veteran's current arthritis or his prior ganglion cyst. On remand, an addendum opinion is required. Accordingly, the case is REMANDED for the following action: 1. On remand, after a review of the claims file, an addendum opinion is required. a) Is it at least as likely as not (50/50 probability or greater) that the Veteran's current left wrist arthritis is due to his military service? b) Is it at least as likely as not (50/50 probability or greater) that the Veteran's left wrist ganglion cyst was due to his military service? Include in the explanation for any opinion a notation as to the hypolunate sesamoid bone that was noted in the 1983 x-ray is related to any current left wrist disability. A complete explanation is required for all opinions expressed. 2. Readjudicate the Veteran's claim. If the decisions remain adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs