Citation Nr: 1805106 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-48 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a lumbar spine disability. REPRESENTATION Veteran represented by: South Carolina Office of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Pelican, Counsel INTRODUCTION The Veteran served on active duty in the Army from September 1980 to January 1997, with subsequent Army National Guard service to include from February 2003 to March 2004. The Veteran was awarded the Army Achievement Medal and Overseas Service Ribbon, among other decorations. This case comes before the Board of Veterans' Appeals (the Board) from a November 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before a Veterans' Law Judge (VLJ) in March 2013. A transcript of that proceeding has been associated with the claims file. In an October 2017 letter, the Veteran was informed that the presiding VLJ had since retired, and he was offered the opportunity to attend another hearing. In a November 2017 response, the Veteran declined to have a new hearing. This case was remanded by the Board in November 2013, and the requested development has been completed to the extent possible. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for a cervical spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The probative evidence is at least in equipoise as to whether the Veteran's lumbar degenerative disc disease is related to active service. CONCLUSION OF LAW The criteria to establish service connection for lumbar degenerative disc disease have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.159 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The appeal adjudicated herein has been considered with respect to VA's duties to notify and assist. Given the favorable outcome in this decision that represents a full grant of this matter, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) 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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran has a diagnosis of lumbar degenerative disc disease (DDD), and his service treatment records show treatment for low back injuries in April 2001 and February 2003, satisfying the first and second Hickson elements. This case turns on whether the Veteran's lumbar DDD is related to service. There are conflicting nexus opinions. In a November 2011 addendum, a VA examiner opined the Veteran's lumbar DDD was less likely than not related to service due to lack of corroborating evidence in the service treatment records. The examiner noted the Veteran's documented low back treatment during service, but concluded that the back sprain in 2001 was self-limiting and that the remaining service treatment records did not support the Veteran's contentions of back pain incurred during his deployment to Southwest Asia. In a November 2011 opinion, Dr. J. S. opined that the Veteran's low back disability was at least as likely as not related to service. Dr. J. S. based that conclusion on the Veteran's "significant amount" of DDD and a review of the Veteran's medical records. The Board observes that in support of his claim, the Veteran submitted a statement from a fellow service member, L. H., who wrote that the Veteran hurt his lower back jumping on and off military and civilian vehicles while in Southwest Asia. See June 2009 statement. Both opinions are based on review of the Veteran's medical record, and are consistent with the record though brief in nature. In light of the foregoing and resolving any reasonable doubt in the Veteran's favor, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's lumbar DDD is related to service. Accordingly, service connection for lumbar DDD is warranted. ORDER Entitlement to service connection for lumbar degenerative disc disease is granted, subject to controlling regulations governing the payment of monetary awards. REMAND Additional clarification is required with respect to the Veteran's cervical spine claim. The November 2008 and September 2011 VA examination reports indicate diagnoses of cervicalgia and cervical spine strain, respectively, and an August 2011 VA cervical spine x-ray indicated that no discogenic disease or evidence of prior injury was present. However, records from Dr. J. S. dated in July 2011 and November 2011 state that the Veteran has a diagnosis of cervical DDD based on an MRI. The only MRI of the cervical spine on file is a March 2011 record from Roper Hospital Diagnostics; however page one of the document is obscured with a post it note. In order to clarify the nature of the Veteran's claimed disability, complete copies of records pertaining to the Veteran's cervical spine disability should be obtained, to include records from Roper Hospital Diagnostics - Roper St. Francis Healthcare and Charleston Neurosurgical Associates, and the Veteran should be afforded a new VA cervical spine examination. The November 2011 VA opinion confined its analysis to the Veteran's two documented incidents of cervical spine trouble in April 2001 and February 2003. However, during his March 2013 Board hearing, the Veteran testified that he incurred his cervical spine disability through the performance of his duties, including driving rods into the ground with sledgehammers, and general overuse throughout service. See March 2013 Hearing Transcript, pp. 5-7. In support of the latter contention the Veteran submitted an article describing how 80 percent of musculoskeletal injuries from military service are due to overuse. See September 29, 2010 correspondence on VBMS. Accordingly, the examiner should consider these assertions. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). Expedited handling is requested.) 1. Take appropriate action to obtain VA treatment records not already of record relating to the Veteran's claimed disability. If VA is unable to obtain these records, the Veteran must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 2. With appropriate authorization from the Veteran, obtain and associate with the record any outstanding private treatment records identified by him as pertinent to his claim, to include records from Roper Hospital Diagnostics - Roper St. Francis Healthcare and Charleston Neurosurgical Associates, and an unobscured copy of the March 2011 cervical spine MRI. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and relationship to service of his claimed cervical spine disability. The written report must reflect that the electronic record was reviewed. Based on examination of the Veteran and review of the electronic record, the examiner is asked to provide an opinion on the following: For any diagnosed cervical spine disability present since September 2008, whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's disability was incurred in or is otherwise related to service, to include the Veteran's documented April 2001 and February 2003 injuries and his reports of overuse during service. In responding to the above inquiries, the examiner's attention is directed to the Veteran's documented treatment for neck injuries in April 2001 and February 2003; the September 29, 2010 printout submitted by the Veteran regarding in-service musculoskeletal injuries due to overuse; and the Veteran's March 2013 testimony regarding his multiple in-service back injuries. See Hearing Transcript, pp. 5-7. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The rationale for any opinion rendered must be provided. If the examiner is unable to offer any opinion without speculation, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 4. Review the examination report for compliance with the Board's directives. If necessary, any corrective action should be undertaken prior to recertification to the Board. 5. After receipt of the above, undertake any additional development necessary in light of the evidence received. Then readjudicate the Veteran's claim. If a complete grant of the benefit requested is not awarded, issue a Supplemental Statement of the Case to the Veteran and his representative, and provide them an opportunity to respond before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs