Citation Nr: 1633364 Decision Date: 08/23/16 Archive Date: 08/31/16 DOCKET NO. 12-05 040A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a back disability, to include as secondary to the service connected bilateral hip disorder. 2. Entitlement to service connection for residuals of a head injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The veteran served on active duty from May 2005 to January 2006, with subsequent reserve duty. This case was originally before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded by the Board for additional development in October 2014. In April 2014, the Veteran was afforded a videoconference hearing pursuant to the provisions of 38 U.S.C.A. § 7107(e) (West 2014). During this hearing, the undersigned Veterans Law Judge was located in Washington, D.C., and the Veteran was located at the RO. A transcript of this hearing is of record. The claim for service connection for residuals of a head injury addressed in the REMAND portion of the decision below requires additional processing and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran has competently and credibly asserted having back pain since active duty and a VA physician has linked post service back disability to service; resolving all reasonable doubt in the Veteran's favor, her current myofascial and chronic back pain is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for myofascial and chronic back pain are met. 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 In view of the favorable outcome of the claim for service connection adjudicated herein, compliance with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014) need not be discussed with respect to such claim. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U. S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a 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. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). 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. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The service treatment reports (STRs) from active duty do not reflect a back disability. The STRs do reflect treatment for bilateral stress fractures in the hips that developed gradually during basic training, and service connection was granted for such disability by an October 2006 rating decision. Approximately one year after active duty in January 2007, and during a period of reserve duty, an examination revealed low back pain in addition to hip pain. The Veteran was ultimately found to be medically unfit for further reserve duty in February 2008 due to chronic low back and bilateral hip pain. A VA outpatient treatment report dated in February 2008 noted that the physical examination was difficult to accomplish due to significant pain in the low back, in addition to the hips and thighs. A March 2008 MRI of the lumbar spine showed degenerative disc disease. The Veteran filed a claim for service connection for a back disability in November 2008, asserting therein that she had "constant back pain that has been brought on by my hips." A June 2009 VA examination scheduled in conjunction with this claim showed the Veteran reporting that was not "convinced" that her back pain was due to her bilateral hip stress fractures, but that she recalled having back pain at the same time she tripped during basic training and sustained a sprain to the right ankle. [The STRs confirm this incident, and service connection was ultimately granted for a right ankle sprain by an October 2006 rating decision.] Upon physical examination in June 2009, there was a palpable spasm in the paraspinous muscles of the lumbosacral spine as well as severe limitation of lumbar spine motion. The assessment was chronic lumbosacral musculoligamentous strain. In an August 2009 addendum to this examination, the examiner opined that the Veteran's low back disability was not secondary to her service connected bilateral hip disability but that it was "at least as likely as not that her chronic lumbosacral strain is related to her military service." At a November 2011 VA examination, conducted by a different examiner than the one who conducted the June 2009 examination, the Veteran again stated that her back pain began during service when she tripped during basic training. She reported having constant low back pain which she treated with Ibuprofen, and she indicated that her back pain at times was so severe that she could not breathe. Range of motion testing of the lumbar spine and straight leg raising testing could not be accomplished due to the Veteran's discomfort. In January 2012 addendum opinions, the examiner indicated that although there had been many descriptions of the Veteran having chronic pain, she had not been diagnosed with a thoracolumbar spine condition. With respect to the March 2008 MRI of lumbar spine that showed degenerative changes, the examiner stated that this was merely an imaging finding, but not a diagnosis. She added that such mild changes in a disc are not likely to be symptomatic, and that it was not at least as likely as not that the Veteran's MRI findings from March 2008 constituted a diagnosis of thoracolumbar spine condition. The October 2014 remand requested a clarifying opinion, which was completed in January 2015. This opinion was limited to the conclusion by the physician that "[n]o diagnosis of a chronic back disability is found." Notwithstanding this opinion, VA outpatient treatment reports dated through October 2014 reflect continuing treatment for back pain and diagnoses of myofascial back pain and chronic back pain. A grant of service connection requires a finding of current disability that is related to an injury or disease in service. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). However, in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time she files her claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. Moreover, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. In light of the above precedent, the undersigned finds that given the determination that that the Veteran was unfit for further reserve duty due to low back pain in addition to bilateral hip pain and the MRI showing degenerative disc disease of the lumbar spine relatively shortly before the Veteran filed her claim, as well as the clinical evidence of back disability subsequent to the November 2008 filing of her claim-to include the assessment after the June 2009 VA examination of chronic lumbosacral musculoligamentous strain and VA outpatient treatment reports dated thru 2014 reflecting treatment for myofascial and chronic low back pain-it cannot reasonably be said that a lumbar spine disability has not been demonstrated proximate to or during the appeal period. Id. The undersigned also finds that the Veteran is competent to report having had back pain since service. See Charles, supra. As such complaints were made relatively shortly after service and plausibly represent overlapping symptomatology with the documented in-service hip complaints, or that such were incurred during the documented in-service fall which resulted in a sprained ankle, the undersigned has also conceded the credibility of these assertions. Therefore, and in light of the positive August 2009 nexus opinion linking lumbar spine disability to service, the Board resolves all reasonable doubt in favor of the Veteran and finds that service connection for myofascial and chronic back pain is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for myofascial and chronic back pain is granted. REMAND The Board's adjudication of the claim for service connection for residuals of a head injury must be deferred. In July 2016, VA issued the Veteran a letter pursuant to its special review of traumatic brain injury (TBI) examinations completed between 2007 and 2015 in support of disability compensation claims for TBI, which revealed that a number of initial TBI exams, including that afforded the Veteran, were not conducted by a neurologist, psychiatrist, physiatrist, or neurosurgeon. This letter indicated that if the Veteran chose so, she could request reprocessing of her claim pursuant to this special review. The Veteran requested such reprocessing, and as such reprocessing could potentially reveal information pertinent to the claim for service connection for residuals of a head injury, the adjudication of this claim must be deferred to ensure due process to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Accordingly, the case is REMANDED for the following action: Complete the reprocessing of the Veteran's claim under VA's special review of initial TBI examinations, and then readjudicate the claim for service connection for residuals of a head injury. To the extent this claim remains denied, the RO should furnish the Veteran and her representative with a supplemental statement of the case. After they are afforded an opportunity to respond, the claim for service connection for residuals of a head injury should be returned to the Board for appellate 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). The claim for service connection for residuals of a head injury 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs