Citation Nr: 18146523 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-31 591 DATE: November 1, 2018 ORDER Entitlement to service connection for spondylosis lumbar spine, postoperative is granted. REMANDED Entitlement to service connection for left foot drop, secondary to spondylosis lumbar spine, postoperative, is remanded. FINDING OF FACT The evidence is at least equipoise regarding where there is nexus between the current diagnosis and the Veteran’s military service. CONCLUSION OF LAW The criteria for entitlement to service connection for spondylosis lumbar spine, postoperative have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from January 1983 to January 1987; and from August 1989 to August 2005. This appeal to the Board of Veteran’s Appeals (Board) arose from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Veteran has perfected a timely appeal. See January 2015 Notice of Disagreement; May 2016 Statement of the Case (SOC); June 2016 Substantive Appeal (VA Form 9). Service Connection A Veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a). Service connection can also be granted for chronic disabilities, if the evidence establishes that it manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §1112; 38 C.F.R. §3.307, §3.309. Service connection for chronic disabilities can be established through a showing of continuity of symptomatology since service, as an alternative to the nexus requirement. 38 C.F.R. §3.303(b). This option is limited to chronic disabilities listed in 38 C.F.R. §3.309(a). When there is an approximate balance of positive and negative evidence regarding any material issues, the Secretary shall give the benefit of the doubt to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for spondylosis lumbar spine with foot drop, postoperative In a February 2013 statement, the Veteran contends that he required lumbar spine surgery in April 2012 because of severe back pain and left foot drop. He states that he spent 20 years on board submarines while in service, requiring him to going up and down steep ladders during 18-hour shifts. The Veteran believes that activity contributed to the lumbar stenosis and other problems he is having now. In his January 2015 NOD, the Veteran continues to argue that the strain on his back during his four tours of duty on four submarines caused lower back problems. The evidence on the record establishes that the Veteran has a current disability. As noted in the March 2014 VA Examination and private medical records from 2012, in April 2012, the Veteran was diagnosed with a degenerative disease involving the lumbar spine (specifically spinal stenosis with lytic spondylolisthesis, status post lumbar fusion). He is receiving treatment for the disability, as exhibited in the private medical records. Regarding an in-service event or injury, service treatment records from 1983 to 2005 show two instances where the Veteran was treated for lower back pain. In June 1992, it was noted that the Veteran had a strained back for two days as a result from working on the abdominal machine. It was diagnosed as an acute lumbar strain and received medication for treatment. In November 1995, the Veteran complained of lower back pain and painful urination. It was noted that he had lower back pain for two weeks, and painful urination for two days. The Veteran was diagnosed with lower back pain, and dysuria with etiology unknown. It was noted later that month that the Veteran’s lower back pain was resolved. In September 2003, the Veteran noted that he was not experiencing any back pain. In an October 2003 examination, the Veteran noted that he did not have recurrent back pain. In his April 2005 separation examination, the Veteran only noted problems with his hearing and his knee. The report is absent any complaints regarding his back. The results from a physical examination showed that the Veteran’s posture was erect, and was able to flex his spine without difficulty. The evidence also establishes that the Veteran served on a submarine, specifically the USS Frank Cable, during his service. See Certificate of Release or Discharge from Active Duty (DD 214). The Board finds that the evidence of the record establishes an in-service injury and event. The Veteran received diagnoses for his lower back pain in June 1992 and November 1995. His service records also note his occupation as a submarine sailor. Regarding the nexus requirement, an April 2013 private medical opinion from the Veteran’s doctor notes the Veteran’s occupation as a submarine sailor. Following that notation, the doctor opines that the it is “certainly possible and conceivable” that the Veteran’s lifestyle and job requirements contributed to his current condition. The doctor states that the Veteran did not describe one specific traumatic event involving injuring his lumbar spine, further explaining that given the multilevel nature of the Veteran’s current disease, it is more of a repetitive microtrauma over the years that resulted in his current condition. The Veteran was afforded a VA examination in March 2014. The examiner reviewed the Veteran’s claims file, which included the service treatment records and private medical records. The examiner concluded that the Veteran’s current lower back condition is less likely as not caused by or the result of his service. The examiner’s rationale was that the June 1992 low back strain was acute and transitory, and resolved without residuals. The examiner also notes the October 2003 medical examination in which the Veteran denied having recurrent back pain, and the condition of his spine being normal during that time of examination. The examiner notes that the medical records within two years of the Veteran’s discharge was silent regarding a low back condition. Lastly, the examiner stated that an intercurrent injury is unknown. The evidence shows that there are conflicting medical opinions of record with regard to the matter of whether the Veteran has his current lower back condition due to service. The Board must therefore weigh the credibility and probative value of these opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In this case, the Board acknowledges the March 2014 VA examination opinion as well as the April 2013 private medical opinion. The Board notes that all opinions are provided by licensed medical professionals, who have applied the established medical consensus regarding the issue of the Veteran’s claim. Thus, both medical opinions are deemed competent. The opinions are also credible, as they are based on the knowledge of the relevant facts in this case. However, they also appear to have drawn differing opinions based upon the same sets of authority and data. The VA examiner relied on the resolution of the Veteran’s back injuries and the notations thereafter that his spine was in normal condition and he did not have any recurrent back pain. The private medical doctor took the Veteran’s subjective history, as well as his job requirements as a submarine sailor into account, and based on his medical knowledge of the Veteran’s current disability, found it possible and conceivable that the Veteran’s service contributed to his condition. Although the private doctor used speculative language, he provided a medical rationale for his opinion; therefore, his opinion is not speculative. See Hood v. Shinseki, 23 Vet. App. 295 (2009). The Board finds that there is competent and credible medical nexus opinion evidence against the claim and for the claim, thus the evidence is at least in relative equipoise. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Board shall give the benefit of the doubt to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Thus, the Board finds that there is a nexus between the Veteran’s current disability and his service. The Board finds that the criteria for service connection for the Veteran’s lumbar spine disability have been met and entitlement to service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for left foot drop, secondary to spondylosis lumbar spine postoperative, is remanded. After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran’s claim of entitlement to secondary service connection for left foot drop. The Veteran contends that he has problems with his left foot secondary to his back condition. He required surgery in April 2012 because of his severe back pain and left foot drop. Private medical records from 2012 indicate that the Veteran’s left foot drop is possibly related to the Veteran’s lumbar spine condition. Given that this decision grants service connection for the Veteran’s lumbar spine condition, an examination and opinion should be obtained on remand to determine if the Veteran’s left foot drop is secondary to spondylosis lumbar spine. The matter is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records for his left foot drop. The RO/AMC should secure any necessary authorizations. 2. Additionally, all updated VA treatment records should be obtained. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his left foot condition. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The claims file should be made available to the examiner for review. After record review and examination, the VA examiner should offer his or her opinion with supporting rationale as to the following inquiries: (a) Does the Veteran have a current diagnosis of a left foot drop or other left foot disability? (b) If the answer to (a) is yes, is it at least as likely as not (a 50 percent or greater probability) that any such disability is due to, or aggravated (i.e., worsened beyond the natural progress) by a service-connected back disability (claimed as spondylosis lumbar spine postoperative)? If a left foot disability shown is deemed not to be due to, or aggravated by a service-connected back disability (claimed as spondylosis lumbar spine postoperative), then the examiner should, if possible, identify the cause considered more likely and explain why that is so. (Continued on the next page)   The basis for each opinion is to be fully explained with a complete discussion of the pertinent lay and medical evidence of record and sound medical principles, including the use of any medical literature or studies, which may reasonably explain the medical analysis in the study of this case. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Syesa Middleton, Associate Counsel