Citation Nr: 1752331 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-18 473A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a respiratory disability. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to a low back condition. 4. Entitlement to service connection for a prostate disability. 5. Entitlement to service connection for a testicular disability. REPRESENTATION Veteran represented by: Adam Neidenberg, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and Ms. A.N. ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service from May 1952 to April 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from several rating decisions of the Department of Veterans Affairs (VA). In October 2010, the Regional Office (RO) in Cleveland, Ohio, denied service connection for a low back disability. In October 2011, the RO in Montgomery, Alabama, denied service connection for a respiratory disability. In September 2014, the Montgomery RO denied service connection for GERD, a prostate disability, and a testicular disability. The Veteran testified before the undersigned Acting Veterans Law Judge at a videoconference hearing in May 2014 regarding his low back and respiratory claims. The Board remanded those claims for development in July 2014 and July 2015. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for a respiratory disability, prostate disability, and testicular disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Degenerative arthritis and spondylolisthesis of the lumbar spine are etiologically related to service. 2. GERD is etiologically related to degenerative arthritis and spondylolisthesis of the lumbar spine. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative arthritis and spondylolisthesis of the lumbar spine have been met. 38 U.S.C § 1110 (West 2014); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for GERD have been met. 38 U.S.C. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2017). Service connection is warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). I. Low Back With respect to element (1) of service connection, a current disability, a May 2015 VA examination diagnosed degenerative arthritis and spondylolisthesis of the lumbar spine. Therefore, element (1) has been met. With respect to element (2), an in-service incurrence, the Veteran reported through lay statements and hearing testimony that he injured his back during service when he fell approximately 20 feet on to his back while working on a wire pole. Service treatment records dated February 1954 document that the Veteran sprained his back while climbing poles. An earlier notation from September 1954 notes a muscle strain of the back. Therefore, element (2) has been met. With respect to element (3), a link between the current condition and service, the Veteran submitted a March 2017 private opinion, which noted that the Veteran's mechanism of injury, a fall from a telephone pole, is significantly different than a mild strain. A fall would also be expected to cause bony and soft tissue injury. The physician stated that, considering the Veteran's reports of back pain since service, it was more likely than not that degenerative arthritis and spondylolisthesis began during active service. VA opinions from October 2010 and May 2015 stated that it was less likely than not that the Veteran's current low back condition was related to service. However, these opinions only referenced one of the Veteran's documented in-service back injuries and therefore carry less probative weight. "The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. Because the March 2017 private opinion links the Veteran's current low back diagnoses to service, and because it is the most probative medical opinion of record, the Board finds the element (3) of service connection has been established, and service connection is warranted. II. GERD Private records from August 2013 and July 2015 reflect a current diagnosis of GERD. The Veteran has asserted that this condition is caused by the medications he uses to treat his now service-connected low back condition. His treatment records and an October 2010 VA examination show that he has used etodolac, among other medications, to treat his back pain. In support of his claim, he submitted a March 2017 private medical opinion, in which the opining physician stated that the Veteran has had intermittent symptoms of GERD after treating his back condition with nonsteroidal anti-inflammatory drugs (NSAIDS). He stated that the Veteran had received ketorolac in service, and used over-the-counter aspirin for many years, to treat back pain. He further explained that NSAIDS were a well-recognized cause of GERD due to their negative impact on the protective lining of the stomach and esophagus, and that chronic use increased the risk of developing GERD. For these reasons, he concluded that it was at least as likely as not that GERD was secondary to degenerative arthritis and spondylolisthesis. Although records do not show a prescription for ketorolac in service, the March 2017 opinion is generally consistent with the evidence of record. Indeed, as noted above, the Veteran has been prescribed etodolac to treat his back pain. The March 2017 opinion establishes a link between the Veteran's GERD and his service-connected low back condition, and there is no other competent medical evidence to refute this conclusion or otherwise assert a different etiology for GERD. Therefore, service connection for GERD as secondary to degenerative arthritis and spondylolisthesis is warranted. ORDER Service connection for degenerative arthritis and spondylolisthesis of the lumbar spine is granted. Service connection for GERD is granted. REMAND Additional development is necessary prior to adjudicating the remaining claims on the merits. The Veteran's claim for a respiratory condition was previously remanded by the Board for a new VA opinion to address the etiology of the chronic obstructive pulmonary disease diagnosed in a May 2015 VA examination. A new VA examination was scheduled, but the Veteran was unable to attend. In correspondence dated April 2017, the Veteran indicated that he was unable to attend his examination due to a medical issue, and indicated his willingness to appear for a future examination. The purpose of the remand was to obtain an adequate VA medical opinion. While the Board has considered the Veteran's willingness to attend another examination, the findings recorded during the May 2015 VA examination appear adequate, and it does not appear that additional clinical examination is warranted. Therefore, the matter should be remanded for a supplemental opinion. With respect to the Veteran's prostate and testicular claims, the evidence reflects current diagnoses for both conditions as well as in-service findings which may be relevant to those diagnoses. Examinations are necessary to determine the etiological relationship, if any, between the current conditions and service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Forward the claims file, including a copy of this remand, to an appropriate VA examiner for an opinion as to the etiology of any currently diagnosed respiratory disability, to include the Veteran's diagnosed COPD. Although the examiner must review the file in its entirety, his/her attention is directed to the following evidence: a) Service treatment records dated November 1953 show the Veteran was seen for an upper respiratory infection, including painful productive cough and rhinitis. b) Service treatment records dated December 1953 show the Veteran was treated for a common cold and mild pharyngitis. c) A March 1954 separation examination was within normal limits. d) Treatment records reflect a diagnosis of COPD since June 2001 and as recently as May 2015. e) Private treatment records dated July 2012 reflect a smoking history of 35 years. In his May 2014 hearing testimony, the Veteran reported smoking for 35 years and up to 3 packs a day. After reviewing the file, the examiner must state whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed respiratory disability, to include COPD, is etiologically related to military service, to include the respiratory conditions diagnosed in November 1953 and December 1953. The examiner must provide a complete explanation for all opinions rendered, citing to the medical record when necessary to support the conclusion reached. If an opinion cannot be provided without resorting to speculation, he/she must state whether there is inadequate factual information, whether the question falls beyond the limits of medical knowledge, or another reason. 2. Schedule the Veteran for a VA examination to determine the current nature and etiology of his prostate and testicular conditions. The claims file must be made available to the examiner, who should indicate in his/her report that the file was reviewed. All indicated tests and studies must be completed. The examiner should then address the following questions: a) What are the currently diagnosed prostate and testicular conditions? b) For each diagnosed condition, is it at least as likely as not (50 percent or greater probability) that the condition is etiologically related to military service? Although the examiner must review the file, his/her attention is directed to the following evidence: a) Service treatment records dated November 1953 show the Veteran was seen for occasional dysuria. b) Service treatment records dated January 1954 show the Veteran was seen for complaints of an "itching" pain in his penis. He was diagnosed with chronic non-venereal urethritis. c) Private treatment records dated May 2006 reflect a diagnosis of prostatitis. Additional VA records from June 2010 reflect findings of prostatomegaly with post-surgical changes consistent with a transurethral resection of the prostate (TURP). VA records from January 2011 reflect a history of multiple TURP/prostate biopsies. d) VA records dated August 2009 show the Veteran was diagnosed with a slightly complex right epididymal head cyst, a left varicocele, and an extratesticular mass inferior to the left testis. The differential diagnosis of this mass was sarcoma and adenomatoid tumor. e) VA records dated October 2015 show the Veteran complained of right testicular pain, and may have had dysuria and dribbling. On examination, the scrotum was swollen and red. He was diagnosed with epididymo-orchitis. The examiner must provide a complete explanation for all opinions rendered, citing to the medical record when necessary to support the conclusion reached. If an opinion cannot be provided without resorting to speculation, he/she must state whether there is inadequate factual information, whether the question falls beyond the limits of medical knowledge, or another reason. 3. Following completion of the above, readjudicate the Veteran's claims for service connection for a respiratory condition, prostate condition, and testicular condition. If any claim is not granted, send the Veteran a supplemental statement of the case (SSOC), and allow him an appropriate time to respond before returning the issue(s) to the Board for further appellate consideration. The appellant 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). ______________________________________________ REBECCA N. POULSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs