Citation Nr: 1752035 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 13-09 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability, to include lumbar degenerative disc disease (DDD) and a bulging disc at L5-S1. 2. Entitlement to service connection for a cervical spine disability, to include damaged vertebrae and DDD. 3. Entitlement to service connection for an acquired psychiatric disability, to include depression and adjustment disorder, to include as secondary to service-connected disabilities. 4. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran service on active duty from March 1984 to July 1984 and from December 1984 to December 2004. This matter was previously before the Board of Veterans' Appeals (Board) in April 2015, at which time claims for service connection for a right hip disability, a left hip disability, and a right hand disability were denied. A previously denied claim for service connection for a low back disability was reopened; that claim as well as the claims for service connection for a cervical spine disability, a psychiatric disability and TDIU were then remanded for additional development. The remanded issues have now been returned to the Board for further appellate review. The issues of entitlement to service connection for a cervical spine disability, a psychiatric disability, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran was treated for an injured low back during service; an X-ray study showed minimal narrowing between L5-S1, and the Veteran reported recurrent episodes of low back pain on his discharge examination. 2. There is a current diagnosis of lumbar DDD with disc bulging at L5-S1, and the Veteran's reports of ongoing low back pain since discharge as well as medical records beginning from within a year of discharge confirming periodic treatment for the same are sufficient to establish continuity of symptomatology. CONCLUSION OF LAW The criteria for service connection for a low back disability, to include lumbar degenerative disc disease and a bulging disc at L5-S1, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.303(a), 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION For the claim for service connection for a low back disability, the complete benefit sought on appeal will be granted. Therefore, any failure in the duty to notify or assist was harmless. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.102, 3.303(a). Service Connection The Veteran contends that he has developed a chronic back disability as a result of active service. He notes that he was treated for low back pain that developed after heavy lifting on occasions during service. The Veteran states that he has continued to experience episodic pain ever since these incidents, which he believes relates his current back disability to service. Establishing 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. If arthritis become manifest to a degree of 10 percent within one year of separation from active service, it is presumed to have been incurred during active service, even though there is no evidence of arthritis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 497 (1997). In relevant part, 38 U.S.C.A. § 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (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 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Low Back The Veteran's service treatment records show that his entrance examination was negative for a low back disability. In January 1989, the Veteran was seen for low back pain that began after he was lifting a propeller shaft. The records show that this episode lasted for approximately six weeks. An initial X-ray study was negative, and the assessment was muscle strain. 3/12/2014 VBMS, STR-Medical, p. 21. However, a February 1989 study showed minimal narrowing between L5-S1, as well as minimal levoscoliosis. 3/12/2014 VBMS, STR-Medical, p. 34. The Veteran was seen for another episode of low back pain in June 1990 when the assessment was muscle strain. 3/12/2014 VBMS, STR-Medical, p. 32. The Veteran denied recurrent back pain on a Report of Medical History he completed in August 1997. However, the September 2004 separation examination shows that he reported a history of back pain that began after lifting a heavy object about five years earlier. His back continued to bother him on occasion, at which time he would usually lie on the floor and stretch out until the episode ended. On examination, the back had a normal range of motion. The diagnoses included low back pain, quiescent at this time. 9/15/2004 VBMS, Medical Treatment Record - Government Facility, p. 1. Post-service medical records show that the Veteran was seen at a VA facility for routine follow up for hypertension, back pain, and right arm tingling. On examination, his pain was noted to be a 2 on a scale to 10. No findings regarding the back were recorded, and no diagnosis was entered. 5/21/2006 VBMS, Medical Treatment Record - Government Facility, p. 12. VA treatment records show the Veteran was seen for low back pain in January 2009. An X-ray study was reportedly normal. 10/28/2009 VBMS, Medical Treatment Record - Government Facility, pp. 8, 84. A February 2009 VA treatment note described a magnetic resonance imaging (MRI) study as benign, and the Veteran was told his weight likely played a role in his symptoms. However, the Board notes that the MRI report shows that the Veteran had mild diffuse symmetrical disc bulge without central or neural stenosis. The impression was mild degenerative discopathy at L5-S1. 5/21/2006 VBMS, Medical Treatment Record - Government Facility, pp. 59, 83. Tricare treatment records from March 2009 show that the Veteran was being followed for back pain that had begun in December with no injury. An X-ray showed multilevel anterior and lateral osteophytosis and bilateral facet hypertrophy at L4-L5 and L5-S1. 6/10/2009 VBMS, Medical Treatment Record - SSA, p. 55. Private treatment records show that the Veteran was followed for control of low back pain in 2009. A private MRI was obtained in August 2009. The report states that the Veteran has congenital central spinal stenosis with short pedicles extending from L2 to L3 through L5 to S1. Also, there were mild degenerative changes involving the discs at L5 to S1 but no significant bulging or focal disc protrusion. 1/14/2010 VBMS, Medical Treatment Record - Non-Government Facility, p. 1. The Veteran underwent a private medical evaluation for the Social Security Administration (SSA) in November 2009. He reported lower back pain from generally jumping from high trucks and high locations that began December 2004. The Veteran was believed to have a L5-S1 disc problem. 3/7/2014 VBMS, Medical Treatment Records - Furnished by SSA, p. 86. The Veteran was afforded a VA examination of the spine in July 2010. After an examination and review of the record, the examiner opined that the Veteran's lumbar condition was not related to events in military service. The Veteran had been treated in 1989 at which time X-rays were negative and he was diagnosed with lumbar strain after lifting a propeller. He was also treated for lumbar stain in June 1990 but was not seen again after that episode. His subsequent annual physicals had been negative for back pain, and the Veteran now has a L5-S1 disc bulge. 7/23/2010 VBMS, VA Examination, p. 17. Private medical records continue to show treatment for back pain in 2014 and 2015. The Veteran underwent an additional VA examination of the lumbar spine in March 2016. He reported an injury to his low back in service. The Veteran said that the pain never resolved, and was now constant. He denied interval injury. On examination, the range of motion of the lumbar spine was normal. 3/2/2016 VBMS, C&P Exam, p. 1. In an addendum, the examiner opined that it was less likely than not that the Veteran's lumbar spine disability was related to active service. The rationale was that the Veteran was symptomatic of mild lumbar degenerative disc disease which was more likely age and weight related. The examiner was unable to identify a pre-existing congenital disease or defect of the lumbar spine. 3/2/2016 VBMS, C&P Exam, p. 1. The Board finds that entitlement to service connection for a low back disability is warranted. The evidence clearly shows that the Veteran sustained an injury to his low back during active service, which was followed by six weeks of back pain. The evidence also shows that the Veteran has a current disability of the low back, which is established by diagnostic evidence. The question becomes whether or not there is a relationship between these two findings. The Board will find that the evidence for and against such a relationship is at least in equipoise. Although the January 2010 VA examiner and the March 2016 VA examiner both opined that the Veteran's current back disability was not related to active service, and the January 2010 VA examiner even described the X-ray in service as negative, neither of these examiners note the X-ray findings of minimal narrowing between L5-S1 in service, or discuss the significance of this finding in light of the February 2009 MRI report of a mild disc bulge at this same location. Furthermore, the Veteran reported at the September 2004 separation examination that his back pain had never completely resolved and would periodically reappear. VA records show that he was seen in November 2005 in order to, among other things, follow up on complaints of back pain. The Board observes that this was less than one year following discharge. Treatment records confirm additional episodes of back pain from 2008 to 2009 and from 2014 to 2015, and the Veteran has provided statements describing his ongoing back pain since his discharge from service. In view of the fact that his initial statement of ongoing low back pain was made prior to discharge and is supported by post-service records, the Board finds the Veteran to be credible, and continuity of symptomatology is established. Thus, a relationship between the current low back disability and injury is service has been demonstrated, and entitlement to service connection is established. ORDER Service connection for a low back disability, to include lumbar degenerative disc disease and a bulging disc at L5-S1, is granted. REMAND The March 2016 VA examination of the cervical spine states that the Veteran's electronic records were reviewed. However, on the examination form, when asked if the Veteran now has or has ever been diagnosed with a cervical spine condition, the examiner answered "no". The examiner states that the Veteran reports an injury to his neck during service, that the pain never resolved, and that he now has constant neck pain. The details of the Veteran's claimed injury were not reported. On examination, the range of motion of the cervical spine was abnormal. The Veteran was then said to have intervertebral disc syndrome. 3/2/2016 VBMS, C&P Exam, p. 1. In an addendum, the examiner opined that the Veteran's neck disability was less likely than not related to service. The rationale was that based on clinical examination and review of the cervical MRI, the Veteran was symptomatic of multilevel, cervical DDD which was more likely age related. 3/2/2016 VBMS, C&P Exam, p. 2. However, a July 2009 private treatment record includes an assessment of neck pain and degenerative disc. 10/15/2009 VBMS, Medical Treatment Record - Non-Government Facility, p. 8. In addition, an April 2009 private MRI includes impressions of anterior disc bulges at C4-C5 and C5-C6, with changes of disc desiccation at those levels. 6/10/2009 VBMS, Medical Treatment Record - Furnished by SSA, p. 49. Given the statement in the March 2016 examination report that the Veteran had never been diagnosed with a cervical spine disability, the Board is unsure whether or not these records were considered by the examiner. If not considered, given that these records are dated a little more than four years after discharge, the question is raised as to whether or not the rationale that the Veteran's current neck disability is age related would be revised. The Board finds that the examination report should be returned in order to obtain an addendum opinion that addresses this matter. Turning to the Veteran's claim for service connection for an acquired psychiatric disability, the record shows that he was provided a VA psychiatric examination in April 2016. The examiner found that the Veteran did not have a current diagnosis, and that his previous diagnosis of an adjustment disorder had resolved in 2012. 4/11/2016 VBMS, C&P Exam, p. 1. In the addendum, the examiner opined that the Veteran's disability was not related to service or to the service connected disabilities. The rationale was that there was no current diagnosis, and that the Veteran had previously experienced an adjustment disorder related to his back pain and family situations that had resolved. 4/11/2016 VBMS, C&P Exam, p. 1. Subsequently, VA treatment records dated May 2017 and July 2017 show that the Veteran now has an assessment of unspecified depressive disorder. The etiology of this disability was not stated. 7/20/2017 VBMS, Capri, pp. 4-5. Given that the rationale of the April 2016 examiner was based largely on the absence of a current psychiatric disability, and given that the Veteran now has an assessment of a depressive disorder, the Board finds that it is necessary to provide the Veteran an additional VA examination to determine if this current disability is related to service or his service connected disabilities, to include the now service connected low back disability. As previously stated in the Board's April 2015 remand, the determinations for the Veteran's cervical spine disability and an acquired psychiatric disability could impact the adjudication of entitlement to TDIU. The Board will not disturb this finding. As found before, the matters are inextricably intertwined, and the TDIU matter is remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following actions: 1. Appropriate efforts should be made to obtain and associate with the case file any further medical records (private of any date, or VA dated subsequent to July 2016) identified and authorized for release by the Veteran. 2. Return the claims file to the examiner who conducted the April 2016 examination of the cervical spine. The examiner should be requested to review his previous examination report and opinion, as well as the claims file. In particular, the examiner's attention is directed to a) the April 2009 private MRI that includes impressions of anterior disc bulges at C4-C5 and C5-C6, with changes of disc desiccation at those levels; b) the July 2009 private assessment of neck pain and degenerative disc; and c) the Veteran's December 2009 statement that described two separate neck injuries in service, the first during training for survival swimming and the second while playing football. Then, the examiner should provide the following opinion: Is it as likely as not that the Veteran's current cervical spine disability was incurred during or due to active service, to include as due to the Veteran's reported injuries? Please discuss whether or not the 2009 cervical spine findings result in a revision of the rationale that the Veteran's current cervical spine disability is age related? The reasons for all opinions should be provided. If the April 2016 examiner is not available, the examination report should be forwarded to an equally qualified examiner in order to obtain the requested opinion. A new examination should be scheduled only if deemed necessary by the examiner. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should state whether the inability is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. 3. Schedule the Veteran for a VA psychiatric examination. All indicated tests and studies should be conducted. The electronic claims file should be reviewed, and the examination report should note that it has been reviewed. At the conclusion of the examination and record review, the examiner should provide the following opinions: a) For all psychiatric disabilities that are currently diagnosed or have been diagnosed from 2009 (to include unspecified disorder in July 2017), is it as likely as not that they were incurred in or due to active service? b) If the answer to (a) is negative, is it as likely as not that any psychiatric disability that is currently diagnosed or was diagnosed from 2009 was incurred due to the Veteran's service-connected disabilities, to include his sleep apnea, deep vein thrombosis, hypertension, knee disabilities, shoulder disabilities, ankle disabilities and/or low back disability? c) If the answer to (b) is also negative, is it as likely as not that any psychiatric disability that is currently diagnosed or was diagnosed from 2009 was aggravated (increased in severity beyond the natural progression) due to the Veteran's service connected disabilities, to include his sleep apnea, deep vein thrombosis, hypertension, knee disabilities, shoulder disabilities, ankle disabilities and/or low back disability? If so, can a baseline severity of the disability prior to aggravation be established? If so, please describe the baseline. The reasons for all opinions should be provided. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should state whether the inability is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. 4. Thereafter, readjudicate the issues on appeal, to include TDIU. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last supplemental statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs