Citation Nr: 1739743 Decision Date: 09/15/17 Archive Date: 09/29/17 DOCKET NO. 07-24 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a back disorder, manifested by low back and bilateral hip pain, claimed originally as a bilateral hip disorder. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from March 1960 through March 1963 and February 1964 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Following a series of remands, the Board denied the Veteran's claim in a July 2013 decision. Notably, the Board referred the issue of the Veteran's entitlement to service connection for a back disorder for development and initial adjudication by the agency of original jurisdiction (AOJ). The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (CAVC). In a November 2014 Joint Motion for Remand (JMR), counsel for the Veteran and the VA Secretary (the parties) argued that the Board failed to consider whether it had jurisdiction over the issue of the Veteran's entitlement to service connection for a back disability. In that regard, the parties pointed to evidence in the record that suggests that the Veteran's claim, characterized originally as a hip disorder, was in actuality a back disorder with pain symptoms in the Veteran's hips. Citing Clemons v. Shinseki, 23 Vet. App. 1 (2009), the parties argued that the Board was compelled to consider accepting jurisdiction over the back issue, rather than referring it to the AOJ. The JMR was granted by CAVC and the matter was returned to the Board for further proceedings consistent with the arguments set forth in the JMR. In June 2015, the Board determined that the Veteran's claim for service connection for a back disorder was indeed encompassed by his original claim for service connection for a hip disorder. Accordingly, the Board accepted jurisdiction over the back issue; however, remanded it for further development, to include: obtaining the records for additional treatment identified by the Veteran; scheduling the Veteran to undergo a new VA orthopedic examination of his back; and if necessary, readjudication of the issue by the AOJ in a Supplemental Statement of the Case (SSOC). The remand action ordered by the Board has been performed. The matter returns to the Board for de novo consideration. During the post-remand development, the Board has granted three 90 days extension requests at the Veteran's request to permit him additional opportunity to submit evidence. See October 2016, February 2017, and May 2017 letters. In an August 2017 decision, the Board denied the claim. However, in correspondence received in August 2017 after issuance of the decision, the Veteran's attorney argued that the August 2017 decision should be vacated, as the Board did not consider relevant evidence. The Board observes that the evidence referred to by the Veteran's attorney had not yet been uploaded to the Veteran's claims file at the time of the decision, but appears to have been submitted to VA. The Board of Veterans' Appeals may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2016). Accordingly, the August 17, 2017 Board decision addressing the issue of entitlement to service connection for a back disorder, manifested by low back and bilateral hip pain, claimed originally as a bilateral hip disorder, is vacated. FINDINGS OF FACT 1. The Veteran has degenerative joint disease in his lumbar spine and sacroiliac joints. 2. The evidence is in relative equipoise as to the question of whether the degenerative joint disease in the Veteran's lumbar spine and sacroiliac joints was sustained during active duty service. CONCLUSION OF LAW The criteria for service connection for a back disorder, manifested by low back and bilateral hip pain, are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts entitlement to service connection for a disability characterized initially by him as a bilateral hip disorder which he asserts was sustained in a fall from a telephone pole that occurred during active duty service. As part of his assertions, he reports that he has had chronic symptoms that date back to the in-service incident. The Veteran's assertions are supported by October 2016 lay statements from his spouse and son, who both report that the Veteran has had chronic pain in his back and hips that has worsened over the years. In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The existence of a chronic in-service disease may be shown through a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity during service. In order to establish the existence of a chronic disease during service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). If chronicity during service is not shown, a showing instead of continuity of symptoms after separation from service is required to support the claim. 38 C.F.R. § 3.303(b). 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 during service. See 38 U.S.C.A. § 1113(b) (West 2014); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Evidence that relates a current disorder to active duty service must be medical in nature unless it relates to a disorder that may be competently demonstrated by lay observation. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). Consistent with the Veteran's assertions, service treatment records show that the Veteran was treated during service in April 1964 for complaints of muscle soreness in his back after a fall from a telephone pole that occurred during training exercises. An examination at that time revealed tenderness along the muscles of the Veteran's low back. A week later, he was followed for ongoing back pain that he experienced while lifting weights. Subsequent service treatment records reflect no further in-service complaints or treatment for the Veteran's back or hips. During VA examinations conducted during the appeal period, the Veteran reported that he did not seek any treatment for his back or hips prior to 1999. Indeed, the post-service treatment records include private hospital records from UMass Memorial Hospital that reflect treatment in April 1999 for reported low back pain that radiated to his groin. A physical examination conducted at that time showed tenderness along the paravertebral muscles and back spasms. Although attending physicians suspected initially that the Veteran had a herniated or collapsed disc in his spine, x-rays of the spine revealed no evidence of fractures, degeneration, or changes in disc height or alignment. X-rays of the sacroiliac joints did reveal mild sclerosis and minimal irregularity of the margins in both sacroiliac joints. The findings were deemed as being consistent with degenerative joint disease. VA spine examinations conducted in March 2011, April 2013, and July 2015 revealed objective orthopedic and radiological findings that were interpreted as being consistent with degenerative joint disease in the Veteran's sacroiliac joints and lumbar spine. In essentially identical opinions and rationale, the VA examiners from the April 2013 and July 2015 examinations concur that it is less likely than not that the Veteran's spine disorders were less likely as not incurred during active duty service or caused by an in-service injury or event. In that regard, the examiners reasoned that the evidence, findings, and history do not show a chronic disability that resulted from the Veteran's in-service fall. The examiners observed that although the Veteran was treated for back pain immediately after his fall in 1964, the Veteran was subsequently able to complete four years of active duty service without further mention of any back problems. Moreover, the examiners state that the post-service evidence does not show that the Veteran had any significant episodes of back problems prior to 1999. The examiners state that the gap of 35 years between the Veteran's in-service injury and the onset of significant back problems in 1999 is too great to overcome from the standpoint of determining a nexus. In that regard, the examiners also pointed out that objective radiological findings in 1999 were of only "mild sclerosis and minimal irregularity of the margins of both SI joints," which the examiner states would be less severe than what one would expect from an injury that progressed over 35 years. In sum, the examiners state, the Veteran's in-service injury in 1964 appears to have been acute and transitory. Based on the foregoing, the examiners suggest that the Veteran's spine disorders are more likely related to aging and wear and tear over time. Of note, neither the April 2013 and July 2015 VA examiners address the Veteran's lay assertions and those of his spouse and son concerning continuity and chronicity of symptoms since service. A June 2017 private opinion from Dr. P.C. reached the opposite conclusion. Based upon the medical history learned from review of the Veteran's claim file, Dr. P.C. opines that it is more likely than not that the Veteran's degenerative back disability is related to his in-service injury. Dr. P.C. places considerable weight on the lay assertions in the record concerning chronicity of the Veteran's symptoms. He also rebuts the VA examiners' rationale by stating that there is nothing in the medical literature to suggest that there should be an "expected" amount of degeneration in the Veteran's spine, even assuming that the degeneration was caused by an event that occurred 35 years before initial diagnosis and treatment. As mentioned, the service treatment records are silent for ongoing back complaints following initial treatment in April 1964. Moreover, the post-service treatment records show that the Veteran did not seek treatment related to his back prior to 1999. Still, radiological studies conducted at that time did show the presence of degeneration in the Veteran's sacroiliac joints and lumbar spine. Although the lay assertions raised by the Veteran, his spouse, and his son concerning chronicity of the symptoms in his back are contrary to the lack of evidence concerning any complaints or treatment during the 34 year period from the Veteran's separation from service in 1965 and initial treatment and diagnosis in 1999, the evidence also does not contain sufficient evidence to rebut those lay assertions. In conjunction with the same, the record contains negative medical opinions given by the VA examiners and a positive medical opinion provided by Dr. P.C. Moreover, those conflicting opinions each appear to be supported by rationale that is consistent with other facts and evidence contained in the record. In view of the foregoing, the weight of the evidence is in relative equipoise as to whether the degenerative joint disease in the Veteran's lumbar spine and sacroiliac joints are related etiologically to his in-service fall in April 1964. The Board resolves reasonable doubt as to that question in the Veteran's favor. Accordingly, the Veteran is entitled to service connection for a back disorder. This appeal is granted. ORDER The August 17, 2017 Board decision that denied service connection for a back disorder, manifested by low back and bilateral hip pain, claimed originally as a bilateral hip disorder, is vacated. Service connection for a back disorder, manifested by low back and bilateral hip pain, claimed originally as a bilateral hip disorder, is granted. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs