Citation Nr: 1756537 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-08 813 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for thoracic and lumbar strain, claimed as middle and lower back disorder, to include as secondary to bilateral knee disorder. 2. Entitlement to service connection for a cervical strain, claimed as upper back and neck disorder. 3. Entitlement to service connection for bilateral ankle strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert A. Elliott II, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2001 to May 2004. The Veteran was awarded the Combat Infantry Badge. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In September 2015, the Board remanded the Veteran's claim for further development. The agency of original jurisdiction (AOJ) substantially complied with the September 2015 remand directives, and no further development is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The evidence of record is at least in equipoise as to whether a relationship exists between the Veteran's thoracic and lumbar strain, claimed as middle and lower back disorder, to include as secondary to bilateral knee disorder, and his active duty service. 2. A cervical strain, claimed as upper back and neck disorder ,was not incurred in service and is not otherwise shown to be etiologically related to or the result of the Veteran's service. 3. A bilateral ankle strain was not incurred in service and is not otherwise shown to be etiologically related to or the result of the Veteran's service. CONCLUSION OF LAW 1. The criteria are met for entitlement to service connection for thoracic and lumbar strain, claimed as middle and lower back disorder. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria are not met for entitlement to service connection for cervical strain, claimed as upper back and neck disorder. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria are not met for entitlement to service connection bilateral ankle strain. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA's duty to notify was satisfied for the claim before the Board by letter dated June 2010. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The record also reflects that VA has made efforts to assist the Veteran in the development of his claim. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records (STRs), VA medical records, private medical records, VA examination reports, and the statements of the Veteran. II. Service Connection In order to obtain service connection (under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303), the evidence 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, i.e., a "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. See 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that a disease or injury was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so too is the disability due to the combat injury in service. See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Service connection of such disease or injury may be rebutted, however, by clear and convincing evidence to the contrary. The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed. See generally 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A. Thoracic and lumbar strain, claimed as middle and lower back disorder, to include as secondary to bilateral knee disorder. The Veteran contends that his back pain is a result of his active duty service, in particular, wearing full gear in a combat zone. See October 2017 Appellate Brief. With regard to the first element of service connection, a current disability, the Veteran is diagnosed with lumbar disc herniation and lumbar degenerative disc disease. See September 2016 Private medical treatment record. With regard to the second element of service connection, in-service incurrence or aggravation of a disease or injury, the Board finds that the Veteran engaged in combat with the enemy, and his lay statements regarding wearing full gear in a combat zone are consistent with the circumstances, conditions or hardships of combat service and are deemed credible and of significant probative value. See 38 U.S.C § 1154(b); 38 C.F.R. § 3.304(d). With regard to the third element of service connection, nexus, the Board finds that evidence is at least in equipoise on the question of whether the thoracic and lumbar strain, claimed as middle and lower back disorder, to include as secondary to bilateral knee disorder, are etiologically related to service. In October, 2010, the Veteran attended a Back Conditions Disability Benefits Questionnaire (DBQ) VA examination. The Veteran stated that his low back pain stating during 2002 without injury or trauma and which has worsened over time. He also complained of tingling sensation in the mid and low back area. There is no radiating pain in bilateral lower extremities. He complained of subjective weakness in bilateral lower extremities. He also complains of tingling sensation in both feet at times. His pain in the back is aggravated by standing. The examiner diagnosed thoracic and lumbar strain. The examiner opined that he was not able to find any injury or treatment related to the Veteran's claim in the back. Therefore I cannot resolve this issue without resorting to mere speculation. In December 2015, as required by a September 2015 Board remand, the Veteran attended a Back Conditions DBQ VA examination. The examiner diagnosed a normal spine. All range of motion was normal with no reported flare-ups indicated by the Veteran as well as no functional loss or impairment of the back. Radiological testing revealed no fracture, normal alignment, and soft tissues were intact. The examiner noted no significant change from an October 2010 examination and no significant degenerative change. The examiner opined that the condition claimed was less likely than not incurred in or caused by the claim in-service injury, event or illness. The examiner's rationale was that there was no evidence of back injuries in service, no physical therapy or medical treatment since discharge, and any injuries in service were minor sprains/injuries which do not cause a chronic condition. Further, he stated that the Veteran's knee condition does not alter his gait, and there is no medical reason why his knees should affect his spine. A May 2016 private MRI of the Veteran's lumbar spine shows a diagnosis of lumbar disc herniation and lumbar degenerative disc disease. In September 2016, Dr. J.S.R. submitted a letter stating that the Veteran presented to his office in August 2016 with a chief complaint of severe low back pain which began approximately 15 years ago while on active duty. He further stated that the findings of the May 2016 MRI correlate with the Veteran's symptoms of back and leg pain. In pertinent part, Dr. J.S.R. states that he believes the Veteran's injuries can be directly and causally related and service connected to the strenuous duties he undertook as a member in the army in his two combat tours. Further, after considering the Veteran's lay statements regarding his combat duty, the September 2016 private positive medical opinion and the negative December 2015 VA opinion, the Board finds that the evidence of record is in equipoise to the question of whether the thoracic and lumbar strain, claimed as middle and lower back disorder are etiologically related to service. Although the December 2015 examination showed no low back disability, the more recent private medical opinion showed a current diagnosis and links that diagnosis with the Veteran's active duty combat service. Coupled with the Veteran's lay statements regarding his combat duty, and resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence against entitlement to service connection does not rise to the level of clear and convincing and criteria for direct service connection under 38 C.F.R. § 3.303(d) for the low back disorder have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Because the Board granted service connection for the low back disability based on injury during service and a medical opinion linking the current disability to in-service injuries under 38 C.F.R. § 3.303(d), other potential theories for entitlement to service connection are rendered moot. See 38 U.S.C. § 7104 (2012) (stating that the Board decides actual case questions of law or fact). B. Cervical strain, claimed as upper back and neck disorder The Veteran contends that his cervical strain is a result of his active duty service, in particular, wearing full gear in a combat zone. See October 2017 Appellate Brief. An October 2010 VA examination report reflects the Veteran's report of neck pain which started during 2002 without injury or trauma and which has worsened over time. The examiner diagnosed cervical strain. Based upon his review of the evidence of record, the VA examiner stated that in the absence of evidence of injury or treatment for a cervical disorder during military service, he could not relate the current disability to service without resorting to mere speculation. In December 2015, the Veteran attended a Neck Conditions Disability Benefits Questionnaire (DBQ) VA examination. The examiner diagnosed a normal cervical spine. All range of motion was normal with no reported flare-ups indicated by the Veteran as well as no functional loss or impairment of the back. Right lateral rotation pain was noted on examination but did not result in/cause functional impairment. Radiological testing revealed no fracture, normal alignment, and soft tissues were intact. The examiner noted no significant change from a prior study and no significant degenerative change. The Board notes that there is conflicting evidence of a current cervical spine disorder, but there is no competent evidence of a chronic neck disorder which is of in-service onset, or related to the service-connected knees. The Board has considered the Veteran's assertions as to the etiology of this disorder. However, the diagnosis of chronic cervical strain and the determination of its etiology are complex medical questions that require medical expertise. Consequently, the Veteran's contentions do not constitute competent evidence. Jandreau, 492 F.3d at 1377. Overall, in the absence of competent evidence supporting the Veteran's claim, the claim must be denied. 38 U.S.C. § 5107(b). C. Bilateral ankle strain The Veteran contends that his bilateral ankle strain is a result of his active duty service, in particular, wearing full gear in a combat zone. See October 2017 Appellate Brief. The report of the VA examination held in October 2010 noted the Veteran's report of ankle pain which started during 2002 without injury or trauma and which has worsened over time. The examination diagnosis was bilateral mild ankle strain. Upon a review of the evidence of record, the VA examiner stated that in the absence of evidence of injury or treatment for a left ankle disorder during military service, he could not relate the current disability to service without resorting to mere speculation. In December 2015, the Veteran attended an Ankle Conditions DBQ VA examination. The examiner diagnosed normal bilateral ankles. All range of motion was normal with no reported flare-ups indicated by the Veteran as well as no functional loss or impairment of the ankles. There was no pain noted on examination, and no ankylosis present. The Board notes that there is conflicting evidence of a current bilateral ankle disorder, but there is no competent evidence of a chronic bilateral ankle disorder which is of in-service onset, or related to the service-connected knees. The Board has considered the Veteran's assertions as to the etiology of this disorder. However, the diagnosis of a bilateral ankle disorder and the determination of its etiology are complex medical questions that require medical expertise. Consequently, the Veteran's contentions do not constitute competent evidence. Jandreau, 492 F.3d at 1377. Overall, in the absence of competent evidence supporting the Veteran's claim, the claim must be denied. 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for thoracic and lumbar strain, claimed as middle and lower back disorder, to include as secondary to bilateral knee disorder is granted. Entitlement to service connection for a cervical strain, claimed as upper back and neck disorder is denied. Entitlement to service connection for bilateral ankle strain is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs