Citation Nr: 1801002 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 10-42 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a lumbar spine disability, with right lower extremity sciatica, claimed as a right hip disability. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a skin disability. 4. Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1971 to July 1974 and October 1990 to May 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas. In October 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The record before the Board consists of electronic records in systems known as Virtual VA and the Veterans Benefits Management System. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). All claims other than entitlement to service connection for a lumbar spine disability, to include an associated right lower extremity sciatica are remanded for additional evidentiary development below. Therefore these claims are REMANDED to the Agency of Original Jurisdiction (AOJ) for further development as described in the REMAND portion of this decision. VA will notify the Veteran if additional action is required on his part. FINDING OF FACT Chronic thoracolumbar spine disability manifestations have been present since service. CONCLUSION OF LAW Thoracolumbar spine disability was incurred in active service. 38 U.S.C. § 1110, 1111 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As explained below, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim for entitlement to service connection for a thoracolumbar spine disability, to include an associated right lower extremity sciatica. Therefore, no further development is required under 38 U.S.C. §§ 5103, 5103A (2012) or 38 C.F.R. § 3.159 (2017). Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after 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). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 1 Vet. App. at 54. Factual Background and Analysis The Veteran contends service connection is warranted for a thoracolumbar spine disability because it originated on active duty. In the course of his July 7, 1971 entrance examination, the Veteran's spine was assessed as normal. Thereafter, he was treated for symptoms of low back pain on several occasions in service. More specifically, the evidence indicates the Veteran experienced a September 1971 injury to his lower back in basic training. By December of 1971 the Veteran was noted to have had multiple return visits to sick call with complaints of ongoing lower back pain that radiated into his right hip. At that time he was placed on a permanent profile as a result of a "chronic" low back impairment. The Veteran continued to report and receive treatment for his lower back disability, with radiating right hip pain throughout his initial period of service. During his March 1974 separation examination, the Veteran reported ongoing recurrent back pain, which the examiner attributed to his basic training injury. His STRs then show that in April 1974 he was hospitalized, and diagnosed with sciatica. Following his initial period of active duty, the Veteran entered the Army Reserves. During his time in the Reserves the Veteran underwent several annual physical evaluations, where he continued to report ongoing recurrent back pain. The Veteran was then mobilized in support of the Persian Gulf War in 1990. He has reported that during his second period of active duty he experienced a worsening of his back disability as a result of the duties required of him while deployed. Importantly, his April 24, 1991 demobilization examination shows the Veteran again reported experiencing back pain. The examiner noted his chronic low back pain, which the examiner determined existed since 1973. The examiner also indicated the Veteran noticed an "increase in back pain from old service connected injury." The Veteran's brother authored a statement in January 2009, wherein he recalled the Veteran's injury in service, as well as his ongoing pain since that time. Further, during his Board hearing the Veteran testified that his back has always hurt since his initial injury in 1971. He also reported that when he experiences flare-ups his pain radiates into his hip and down to his knee. A review of the Veteran's outpatient treatment records from the Houston VAMC, to include the Beaumont Outpatient Clinic, shows the Veteran continues to receive treatment for his lower back disability, as well as right leg sciatica. In August 2010 the Veteran underwent a VA examination. At that time, the examiner diagnosed the Veteran with lumbar spine degenerative changes. He also found the Veteran's painful motion was attributed to his degenerative changes. Nonetheless, the examiner then found the Veteran's current degenerative changes were less likely than not related to his in-service injury. In support of this conclusion, the examiner indicated the Veteran's current degeneration is typical for his age, and there "really is no evidence that he developed chronic back problems after he got out of the military." The examiner wholly failed to explain how or why he rendered this decision. To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, examiners simply are not free to ignore a veteran's statements related to lay observable evidence. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, the examiner failed to discuss the evidence contained in the Veteran's STRs, which expressly chronicle a chronic back disability resulting from his 1971 injury on several occasions. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). Here, the Veteran has reported that he experienced lower back pain following his 1971 injury, which has persisted ever since. His reports are indeed corroborated by numerous STR notes thereafter. The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran's own reports of experiencing ongoing back pain to be at least as probative as the above-noted VA examiner's findings, as the Veteran is truly the only person capable of such observation. As previously noted, this appeal turns on whether there is a nexus between the Veteran's current disability and his injury in service. The Veteran has competently and credibly reported that he experienced lower back pain during and since service due to the in-service injury. The August 2010 VA examiner attributed the Veteran's current back pain to his lumbar degenerative changes. Accordingly, a nexus to service is established. To the extent the August 2010 VA examiner opined that it was less likely as not that the Veteran's current disability was related to his military service, the Board finds his opinion to be of limited probative value as the opinions failed to address the Veteran's lay statements regarding the onset of his disability, or provide a reasoned explanation for his conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) . In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran's currently diagnosed lumbar spine disability and his in-service injury is at least in equipoise with the evidence against a nexus. Therefore, the Veteran is entitled to service connection for his lumbar spine disability. ORDER Service connection for a lumbar spine disability, currently diagnosed as degenerative changes with associated right lower extremity sciatica, is granted. REMAND The Board is of the opinion that additional development is required before the remaining issues on appeal are decided. Left Shoulder Claim Initially, the Board notes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. During his October 2017 Board hearing the Veteran reported that he injured his left shoulder during his second period of active duty in Iraq. In particular, the Veteran stated he was required to wench and trailer M1-A1 tanks to the front line using heavy four by two inch chains, and was also required to lift 92 pound ramps onto the trailers. The Veteran reported that he initially noticed some pain in his left shoulder at that time, but did not seek medical attention because of the combat operations occurring. The Board observes the Veteran's reports are consistent with his military occupation as a motor transportation operator. In addition, 38 C.F.R. § 3.304 (d) states lay or other evidence that an injury or disease 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 Board also notes the Veteran underwent a magnetic resonance imaging assessment in June 2014, at which time he was found to have a near complete tear of the left shoulder supraspinatus, with delamination of the tendon and tendinosis. Based on the foregoing, the Board finds a VA examination and medical opinion is necessary to determine whether the Veteran's currently diagnosed disability originated in service. Skin Rash and Prostate Cancer Claims Next the Board observes that the Veteran has asserted his skin rash and prostate cancer may be the result of his service in the Persian Gulf. To date, the Veteran has not been afforded a VA Gulf War Protocol examination. He maintains his skin rash and prostate cancer may be the result of exposure to environmental hazards and toxic chemicals while he was deployed, including but not limited to, burned trash, sand, sand flies, depleted uranium, and other chemicals. Pursuant to 38 C.F.R. § 3.317, VA will pay compensation to a Persian Gulf veteran with symptoms due to an undiagnosed illness or an unexplained chronic multi-symptom illness, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. On remand, the Board finds the Veteran should be afforded a VA Gulf War Protocol examination to specifically address his claimed skin rash and prostate cancer claims. Following examination, the examiner should provide an opinion whether the Veteran's current disabilities either originated in service or are considered an unexplained chronic multi-symptom illness. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's remaining issues on appeal, to include any more recent treatment records related to the claimed disabilities. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, the Veteran should be afforded an examination by a VA physician with sufficient expertise to determine the etiology of the Veteran's left shoulder disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on a review of the Veteran's pertinent history and the examination results, the examiner should state an opinion with respect to each left shoulder disability diagnosed during the pendency of this claim, to specifically include the near complete tear of the left shoulder supraspinatus, with delamination of the tendon and tendinosis. Specifically, the examiner should state whether the Veteran's left shoulder disability, at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service, to include as a result of his lifting of heavy four by two inch chains and 92 pound ramps onto trailers. In this regard, the examiner must discuss and consider the Veteran's competent and credible lay statements as they relate to his reports of a left shoulder injury in service. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to provide the required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The Veteran should also be afforded a VA Gulf War Protocol examination by a physician with sufficient expertise to address the etiology of the Veteran's claimed skin rash and prostate cancer disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to the Veteran's skin rash and prostate cancer. In this regard, the examiner must state whether the Veteran's skin rash at least as likely as not (a 50 percent probability or greater): a) originated during his period of active service or is otherwise etiologically related to his active service; or b) is a chronic multi-symptom disability, and if so, the examiner should state whether the disability: i. results from a clear and distinct etiology, ii. partially known etiology, or iii. an unknown etiology. Likewise, the examiner must state whether the Veteran's prostate cancer at least as likely as not (a 50 percent probability or greater): a) originated during his period of active service or is otherwise etiologically related to his active service; or b) is a chronic multi-symptom disability, and if so, the examiner should state whether the disability: i. results from a clear and distinct etiology, ii. partially known etiology, or iii. an unknown etiology. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to provide the required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Finally, undertake any other indicated development, and then readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs