Citation Nr: 1804218 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 09-47 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for degenerative joint disease (DJD), arthritis, and intervertebral disc syndrome (IVDS) of the lower back, to include as due to service-connected recurrent lumbar strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Gabay, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from October 2003 to April 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Togus, Maine. This matter was remanded for additional development by the Board in June 2013, March 2016, and April 2017. The Board notes that the claim on appeal has been recharacterized appropriately. Clemons v. Shinseki, 23 Vet. App. 1 (2009). FINDINGS OF FACT Resolving all reasonable doubt in the Veteran's favor, the Veteran's DJD, arthritis, and IVDS of the low back is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for DJD, arthritis, and IVDS of the low back have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Merits of the Claim Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See, e.g., Hickson v. West, 12 Vet. App. 247 (1999); 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 a service-connected disease or injury." 38 C.F.R. § 3.310(a) (2017). Establishing service connection on a secondary basis requires evidence sufficient to show the following: (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) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; 38 C.F.R. § 3.310(b) (2017). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran asserts that he has a current diagnosis of DJD and arthritis of the low back that is etiologically related to service, to include as secondarily related to his service-connected lumbar strain. Regarding the requirement for a current diagnosis, the Veteran has received several diagnoses over the course of the appeals period, including somatic dysfunction of the lumbar and thoracic regions, thoracolumbar degenerative disc disease (DDD), thoracolumbar DJD, degenerative arthritis of the spine, and IVDS. As such, the Board finds the Veteran has satisfied the requirement of a current diagnosis. Regarding the requirement for an in-service incurrence, in June 2004 and March 2008 VA examinations, the Veteran stated that he developed back pain during boot camp while on a long forced march in full gear. In a February 2008 statement, however, the Veteran reported that his back pain began in boot camp while holding up rifles and lockers for long periods of time. Private treatment records show that the Veteran was seen at Mercy Hospital for treatment for back pain in June 2003, four months prior to service. However, the physician found the thoracic spine to be in normal condition. No back condition was listed on the Veteran's enlistment examination. Service treatment records (STRs) from October 2003 indicate that the Veteran complained of upper back pain for 48 hours without injury or trauma. No scoliosis or spasm was noted. The clinician offered an impression of upper rhomboid/trapezius pain. A separate October 2003 STR revealed treatment for mid-back pain, which was reported to have lasted for 72 hours and to have arisen without trauma. An examination revealed no gross deformity or spasms. In the Veteran's April 2004 discharge examination, the Veteran reported having recurrent back pain. He indicated that he was seen for back problems while in service, "but nothing was done for it." As noted above, the Veteran has alleged two separate in-services incurrences which caused his back symptoms, and service treatment records confirm that he was, in fact, seen and treated for back pain. While it is unclear based on the evidence of record whether the Veteran had a preexisting back injury, no back condition was listed on the Veteran's enlistment examination. As such, there is sufficient evidence of record to satisfy the requirement of an in-service incurrence. Regarding the requirement of a nexus between the claimed in-service disease or injury and the present disease or injury, in May 2004, the Veteran was treated by his primary care physician for pain in the dorsal spine and rib cage. He was assessed with thoracic spine pain with questionable osteomyelitis. The physician noted that the Veteran's pain began in boot camp. The Veteran underwent a VA examination in June 2004. The examiner opined that STRs support the Veteran's contention that he developed midthoracic back discomfort early in basic training after a long forced march with gear. The examiner noted that the Veteran continued to experience sharp pain at the time of the examination. The examiner found a somewhat accentuated dorsal kyphotic curve and tenderness on percussion at the midthoracic region, but normal range of motion. He was assessed with a midback strain. In May 2005, the Veteran was treated for lumbar complaints, which he indicated derived from lifting a 60- to 70-pound ray of mail while at work at the United States Postal Service (USPS). Examination of the back revealed muscle spasms and Somatic dysfunction of the cervical, lumbar, and thoracic region, and of the rib cage. Thoracic range of motion testing showed decreased flexion and extension. He was assessed with Somatic dysfunctions of the thoracic, lumbar, and cervical regions, and of the rib cage. In January 2008, the Veteran was treated for a fall he sustained while working at USPS. Thoracic range of motion testing showed normal flexion and extension without pain. He was assessed with low back pain and somatic dysfunctions of the thoracic, lumbar, and pelvic regions. The Veteran underwent a VA examination in March 2008, during which the Veteran reported developing back pain during basic training on a long forced march with full gear. He reported the bulk of his pain in the upper and lower lumbar area and the lower thoracic region. He was assessed with chronic thoracolumbar strain. However, the examiner found no evidence of degenerative changes at the time of the Veteran's discharge nor evidence of severe in-service trauma. As such, the examiner concluded that whatever degenerative changes might appear on X-rays are "likely as not" unrelated to the thoracolumbar strain. The examiner diagnosed the Veteran with mild discogenetic disease at L5/S1. A November 2008 private treatment note reports that the Veteran's vertebral body height and intervertebral disc spaces were maintained, and there was no significant scoliosis of the thoracic spine or compression deformity. The Veteran underwent a private examination with Dr. Kazilionis, his primary care physician, in which the physician indicated the Veteran's pain had its onset in service. Examination revealed muscle spasms and Somatic dysfunctions. He was assessed with thoracic spine pain and scoliosis. The Veteran underwent a private examination in January 2009, during which he complained of left mid back pain, which he described as intermittent, annoying, and aching, and which was exacerbated by prolonged standing or sitting. The Veteran reported first noticing mid and low back pain in 2003 while in the military. While he could not point to a single precipitating event or trauma, he associated the painful episodes with long hikes carrying a heavy backpack. The Veteran stated that he would be symptomatic the next day. He denied any previous history of pain or injury to the axial spine. Examination revealed loss of motion at T5 with spasm and tenderness on the left side. The Veteran was diagnosed with somatic dysfunction of the lumbar and thoracic regions, thoracic pain, and lumbar pain. In a separate January 2009 private treatment note, the Veteran described wearing his mail bag around his waist instead of over his shoulder. Doing so was an improvement compared to the shoulder strap he previously used, but carrying the bag was noted to still cause him pain. A February 2009 private treatment note indicates the Veteran was seen for back pain, which he stated stemmed from a military injury. The physician indicated a small left paracentral disc herniation at the T11-12 level, and minimal straightening of the posterior annulus at the L3-4 and L4-5 levels. In a May 2009 letter, Dr. Kazilionis concluded that the Veteran sustained a back injury while in service, and that the Veteran continues to suffer from back pain that resulted from that in-service injury. He indicated there to be evidence of a herniated disc at T10-11 without encroachment to the spinal cord, and that this was consistently the area of his primary complaint of pain. Dr. Kazilionis stated that the Veteran has exacerbated his injury during daily activities since discharge. He opined that the Veteran's in-service back injury caused the Veteran to sustain injuries to the surrounding thoracic paraspinal tissue. He ultimately concluded there to be a clear correlation between the injury suffered in service and the Veteran's current pain. The Veteran underwent a VA examination in August 2013 in which the examiner noted a 2004 diagnosis of mid back strain and a 2008 diagnosis of thoracolumbar DDD/DJD. The Veteran described flare-ups that occur with random movements, when trying to sleep, or after lifting weights. He was noted to exhibit guarding and tenderness of the thoracolumbar spine. The Veteran was also noted to have IVDS, and the examiner noted a 2009 MRI which showed a herniated disc at T11-12 and mild DJD. The examiner concluded that the Veteran's condition was less likely than not incurred in or caused by service, opining that his pain stemmed from his work as a USPS letter carrier and his two on-the-job injuries in 2005 and 2008. Additionally, the examiner noted that complaints of DDD and DJD did not surface until 2008 after many years of heavy lifting and the two work-related injuries. The examiner further concluded that the condition was less likely as not aggravated by service or proximately due to the Veteran's service-connected lumbar strain, again opining that the DJD likely stemmed from his USPS work, and further indicating that his lumbar spine strain likely would have resolved had it not been for his work with the USPS. In November 2013, the Veteran issued a statement in which he reported using a special waist bag to deliver mail, so as to put "absolutely no pressure on [his] back." As such, he indicated that his current worsening back pain, which had existed since the military, did not derive from his years as a mail carrier, but rather stemmed from his 2003 back injury while in the Marines. The Veteran underwent a VA examination in September 2016 in which he was noted to have diagnoses of lumbosacral strain, degenerative arthritis of the spine, and IVDS. He reported experiencing flare-ups of pain, and upon examination, the Veteran was found to have decreased range of motion of the spine. The examiner concluded that the Veteran's DJD and arthritis are less likely than not related to service, noting that the June 2003 pre-service X-rays were normal. The examiner also noted the August 2003 medical history pre-screen and military entrance exam fail to reference a back condition, and an October 2003 in-service X-ray was normal. However, the examiner opined that it is not undebatable whether the Veteran's lumbar arthritis and IVDS preexisted service, as the June 2003 X-rays and October 2003 entrance exam were silent for IVDS or arthritis. Finally, the examiner concluded that the service-connected lumbar strain would not contribute to the development or aggravation of IVDS or arthritis, as those conditions generally develop from repetitive exertional forces on the spine, or direct trauma to the back. The Veteran underwent a final VA examination in May 2017, during which the examiner noted diagnoses of a lumbar strain from 2003, and DJD or arthritis of the thoracolumbar spine from 2008. Upon examination, the Veteran exhibited loss of range of motion of the thoracolumbar spine. There was evidence of pain in the paraspinal region, as well as evidence of muscle spasm and guarding. The Veteran was noted to have IVDS of the thoracolumbar spine. Imaging studies revealed arthritis in the thoracolumbar region. The examiner indicated that he was unable to differentiate the Veteran's service-connected lumbar spine symptoms with the Veteran's non-service-connected lumbar arthritis and IVDS without resorting to speculation, stating that service records from October 2003 to April 2004 do not detail exact anatomical location of back pain symptoms. However, the examiner concluded that it was less likely as not that the Veteran's lumbar arthritis was etiologically related to his active service. He opined that the Veteran's pain symptoms developed in June 2003, four months prior to entry into the military, and there was no indication that the Veteran's service aggravated the Veteran's condition in any way. Rather, the examiner opined that the Veteran's DJD and arthritis more than likely stemmed from his work as a USPS mail carrier, where he carried 60- to 70-lb bags for many years, and where he had the two on-the-job injuries in 2005 and 2008. To that end, the examiner further indicated that complaints of DDD and DJD did not surface until 2008. The examiner also concluded that the Veteran's thoracic IVDS was less likely as not etiologically related to service, noting that June 2003 X-rays, taken four months prior to service, revealed no IVDS; nor did X-rays taken in October 2003, while the Veteran was in service. Rather, the examiner opined that the Veteran's condition arose from the two post-service work-related injuries. Finally, the examiner opined that neither the lumbar arthritis nor thoracic IVDS was aggravated by the Veteran's service-connected lumbar strain, noting that the lumbar strain is stable, and there is no documented evidence of activity suggesting a worsening of the lumbar arthritis and IVDS by the lumbar strain. Despite the foregoing negative VA opinions, after weighing the probative value of the competent evidence, and after affording the Veteran the benefit of the doubt, the Board finds that the Veteran's current DJD, arthritis, and IVDS of the low back, is etiologically related to his military service. While the opinions of the VA examiners are competent and probative, they are met in equipoise by the competent and credible medical opinion of Dr. Kazilionis, who has treated the Veteran for his back condition for over a decade, and who concluded, after years of treatment of the Veteran, that the Veteran's low back condition is etiologically related to service. See Gilbert, 1 Vet. App. at 49. Additionally, the Board emphasizes that the May 2017 examiner was unable to differentiate the Veteran's service-connected lumbar strain symptoms from his low back DJD and arthritis symptoms. When it is not possible to separate the effects of a service-connected condition from those of a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the Veteran's favor. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The medical evidence of record shows an onset of the Veteran's low back DJD and arthritis symptoms in service, and the Veteran's competent lay statements indicate a continuity of symptomatology ever since. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). In this regard, the competent and credible evidence shows that the Veteran sought treatment for back pain during his active duty service, and that his symptoms have recurred since service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). While symptoms, not treatment, are the essence of any evidence of continuity of symptomatology, the medical evidence also supports the Veteran's reports that his back symptoms have been present since at least 2003. See Wilson, 2 Vet. App. at 19. Thus, after affording him the benefit of the doubt, the Board finds the Veteran's DJD and arthritis of the lower back is etiologically related to his military service. Accordingly, after applying the benefit-of-the-doubt rule, the evidence is at least in equipoise in showing that service connection for a lower back condition is warranted. Thus, the claim is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. ORDER Service connection for DJD, arthritis, and IVDS of the low back, to include as due to service-connected recurrent lumbar strain, is granted. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs