Citation Nr: 18148224 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-06 524 DATE: November 7, 2018 ORDER Service connection for a lumbosacral spine disability, diagnosed as degenerative disc disease, is granted. REMANDED Entitlement to service connection for chronic throat inflammation, to include dysphagia, is remanded. FINDING OF FACT A lumbosacral spine disability, diagnosed as degenerative disc disease, had its onset in service. CONCLUSION OF LAW The criteria for service connection for a lumbosacral spine disability, diagnosed degenerative disc disease, have been met. 38 U.S.C. §§ 101(24), 1101, 1110, 1112, 1113, 1116, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from February 1969 to September 1970. He also apparently had additional service in the Florida Army National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal of May 2011 and February 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The May 2011 RO decision denied service connection for a lumbosacral spine disability (listed as degenerative disc disease of the lumbosacral spine, claimed as a low back condition). The February 2015 RO decision denied service connection for chronic throat inflammation, to include dysphagia (listed as chronic throat inflammation/dysphagia). In September 2018, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. The issues have been recharacterized to comport with the evidence of record. Lumbosacral Spine Disability Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The term “active military, naval, or air service” includes active duty, any period of active duty for training during which the individual was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C. § 101 (24). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310 (2015); see also Allen v. Brown, 7 Vet. App. 439 (1995). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service incurrence for the following diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin’s disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin’s lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, and trachea), and soft-tissue sarcomas. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Effective August 31, 2010, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), is included as a disease associated with herbicide exposure under 38 C.F.R. § 3.309 (e). (Under 38 C.F.R. § 3.309 (e), the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. 38 C.F.R. § 3.309 (e) (Note 3.). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The Veteran contends that he has a lumbosacral spine disability that is related to service. He specifically maintains that he was in a military unit where he had to perform a lot of lifting and that his lumbosacral pain began during his period of active duty. The Veteran reports that his lumbosacral spine disability started while he was performing artillery field training and lifting artillery rounds for big guns during firing exercises. He states that he was treated for low back problems at an infirmary during his period of active duty, and that he was able to return to the field, but with no lifting. The Veteran further indicates that he received treatment for a lumbosacral spine disability at Winter Haven Hospital in Florida within a year of his separation from service, but that those records were destroyed. He also relates that he was given light duty due to his lumbosacral spine disability during his period of service in the Florida Army National Guard. The Veteran essentially asserts that he had lumbosacral spine problems during and since service. The Veteran served on active duty in the Army from February 1969 to September 1970. He also apparently had additional service in the Florida Army National Guard. The Veteran has reported that he served in the Florida Army National Guard in 1971. The RO has conceded that the Veteran had exposure to Agent Orange based on his service in Korea. The Veteran’s service treatment records for his period of active duty from February 1969 to September 1970 do not show treatment for any low back problems. His service treatment records for his period of service in the Florida Army National Guard are not of record. Post-service private and VA treatment records, including an examination report, show treatment for lumbosacral spine problems, to include diagnoses of low back pain; lumbar back pain; severe acute low back pain, with muscle spasms; lumbar spine strain; and degenerative disc disease of the lumbosacral spine. A September 2010 statement from the Veteran’s spouse notes that she had been married to the Veteran for twenty-one years and that they had been together for thirty-one years. The Veteran’s spouse stated that the over the years, the Veteran had suffered intermittent pain in his lower back, which would last for three to four days at a time. She indicated that during those periods, the Veteran would have limited movement, an inability to sleep, and that he would struggle to get in and out of bed. She maintained that the most memorable time during which the Veteran experienced low back pain was on their wedding day and that he was severely incapacitated for days. An October 2010 lay statement from the Veteran’s brother indicates that he supported the Veteran regarding the back injury he sustained in the Army. He reported that the Veteran had endured many years of pain with back problems. An October 2010 lay statement from D. F., a friend of the Veteran, notes that he had known the Veteran for fifty years, and that they were classmates during high school. D. F., reported that although he did not live in the same state as the Veteran, they still communicated weekly by phone and, daily, by email. D. F., indicated that throughout the years, the Veteran had shared with him the problems with his back which he injured while in the Army. A December 2010 VA spine examination report includes a notation that the Veteran’s claims file was reviewed. The Veteran reported that he was in a military unit which had to perform a lot of lifting. He stated that his back pain started during his period service. He indicated that his back pain had been worse for the previous few years. The Veteran maintained that his back pain was affecting his sleep, and that he had difficulty with lifting anything heavy and with walking. It was noted that the Veteran’s symptoms were pain, stiffness, weakness, and fatigability. The Veteran reported that his pain was located across the lumbosacral area and that it did not radiate. The diagnosis was degenerative disc disease of the lumbosacral spine. The examiner reported that x-rays, as to the Veteran’s lumbosacral spine, show mild degenerative changes. The examiner stated there was no back pain documented in the Veteran’s service treatment records and that his separation examination was normal. The examiner indicated that records in the Veteran’s claims file show acute severe low back pain from November 2005. The examiner maintained that based on the available information, the Veteran’s low back pain was less likely than not related to his military service. The Board notes that the Veteran’s service treatment records do not specifically show treatment for lumbosacral spine and/or low back problems. The Board observes, however, that post-service private and VA treatment records, including an examination report, do show treatment for variously diagnosed lumbosacral spine problems, including degenerative disc disease of the lumbosacral spine. Additionally, an October 2010 statement from the Veteran’s brother indicates that he supports the Veteran regarding the back injury he sustained in the Army. The Board also notes that an October 2010 lay statement from D. F., indicates that he had known the Veteran for fifty years, that they were classmates during high school, and that, throughout the years, the Veteran had shared with him the problems with his back which he injured while in the Army. A September 2010 lay statement from the Veteran’s wife notes that she had known the Veteran for thirty-one years and that, over the years, he had suffered from intermittent pain in his lower back. The Board observes that a December 2010 VA spine examination report relates a diagnosis of degenerative disc disease of the lumbosacral spine. The examiner, following a review of the claims file, maintained that that based on the available information, the Veteran’s low back pain was less likely than not related to his military service. The Board notes, however, that the examiner did not address the Veteran’s reports of low back problems during service and since service. The Board observes that the Veteran is competent to report low back problems during service and since service. See Davidson, 581 F.3d at 1313. The examiner also did not address the lay statements of record, including from the Veteran’s brother and D. F., which essentially indicate that he suffered a low back injury while in the Army, and low back pain since that time. Therefore, the Board finds that the examiner’s opinion is not probative in this matter. The Veteran is diagnosed with a lumbosacral spine disability, diagnosed degenerative disc disease. The Board finds the Veteran’s reports of low back problems during and since his period of active duty in the Army from February 1969 to September 1970 to be credible. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board also finds that the lay statements from the Veteran’s brother, and D. F., which essentially indicate that he suffered a low back injury while in the Army, and low back pain since that time, to be credible. Resolving any doubt in the Veteran’s favor, the Board finds that the evidence is at least in equipoise regarding whether the current lumbosacral spine disability, diagnosed as degenerative disc disease, commenced during his period of active duty in the Army. In light of the evidence, as well as the deficiencies in the examiner’s opinion, pursuant to the December 2010 VA spine examination report, the Board cannot conclude that the preponderance of the evidence is against granting service connection for a lumbosacral spine disability, diagnosed as degenerative disc disease. Therefore, service connection for a lumbosacral spine disability, diagnosed as degenerative disc disease, is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As the Board has granted direct service connection in this matter, it need not address other theories of service connection. REASONS FOR REMAND The remaining issue on appeal is entitlement to service connection for chronic throat inflammation, to include dysphagia. The Veteran contends that he has chronic throat inflammation, to include dysphagia, that is related to service. He specifically maintains that his chronic throat inflammation, to include dysphagia, has been occurring ever since his period of active duty. The Veteran reports that he was treated during service for a chronic sore throat on numerous occasions. He indicates that is service treatment records also indicate that he suffered from difficult swallowing. The Veteran has further asserted that he has chronic throat inflammation, to include dysphagia, that is due to amyloidosis. The Veteran is competent to report having throat problems, and trouble swallowing, during service and since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran served on active duty in the Army from February 1969 to September 1970. He also apparently had additional service in the Florida Army National Guard. The RO has conceded that the Veteran had exposure to Agent Orange based on his service in Korea. The Veteran has reported that he served in the Florida Army National Guard in 1971. The Board observes that although the Veteran has stated that he served in the Florida Army National Guard, the actual dates of the Veteran’s periods of service in the Florida Army National Guard, to include any periods of active duty, active duty for training, and inactive duty training, have not been verified. Additionally, the Board notes that although the Veteran apparently had service in the Florida Army National Guard, there are no service treatment reports of record for such service. Therefore, the Board finds that an attempt should be made to verify the Veteran’s periods of active duty, active duty for training, and inactive duty training with the Army or Florida Army National Guard, and to obtain any additional available service treatment records, as well as to obtain his service personnel records. The Veteran’s service treatment records for his period of active duty from February 1969 to September 1970 show that he was treated for throat problems. A May 1969 treatment entry notes that the Veteran complained of coughing, nasal drainage, and a sore throat. The impression was an upper respiratory infection. A subsequent May 1969 entry indicates that the Veteran complained of coughing, a sore throat, and nasal drainage. The impression was also an upper respiratory infection. A June 1969 entry notes that the Veteran reported that he had a sore throat, nasal congestion, a headache, and a sore neck. The examiner reported that the Veteran was given medication, including Dimetapp. A subsequent June 1969 entry indicates that the Veteran continued to complain of a sore throat, with no response from his medication. The examiner reported that the Veteran’s throat was red with a large ulcerated appearing area on the left tonsil, with a large white exudate. A diagnosis was not provided at that time. It was noted that the Veteran was prescribed Procaine Penicillin. Post-service private and VA treatment records indicate that the Veteran was treated for variously diagnosed throat and swallowing problems, including dysphagia; pharyngeal stage dysphagia; dysphagia, pharyngeal phase; pharyngitis; and oropharyngeal based dysphagia. A January 2015 VA esophageal conditions examination report includes a notation that the Veteran’s claims file was reviewed. The Veteran claimed that he had chronic throat irritation and dysphagia as a result of amyloidosis. He reported that he was diagnosed with amyloidosis in the 1990s. He indicated that he had chronic throat irritation, secondary to amyloidosis, at the time that his amyloidosis was diagnosed in the 1990s. The diagnosis was dysphagia. The examiner indicated that it was less likely than not that the claimed chronic throat inflammation, to include dysphagia, was secondary to amyloidosis. The examiner stated that there was no evidence for a diagnosis of amyloidosis. The examiner reported that all documentation for a sore throat in the medical records represented acute sore throat infections, which were treated with short courses of antibiotics. It was noted that the Veteran’s service treatment records also documented acute sore throat infections, which were treated with antibiotics. The examiner stated that the Veteran was given Procaine Penicillin in June 1969. The examiner indicated that dysphagia was documented in the post-service medical records in a gastroesophageal reflux disease (GERD) work-up and during his treatment for gallbladder disease. It was noted that a September 2014 letter, from a private physician, indicates that the Veteran underwent recent diagnostic testing through the office of another private physician for evaluation of GERD, and that the Veteran remained on Omeprazole and complained of ongoing dysphagia. The Board observes that the examiner’s opinion did not specifically address whether Veteran’s claimed chronic throat inflammation, to include dysphagia, was related to his period of service. Additionally, the examiner did not address whether the Veteran’s diagnosed dysphagia was caused by exposure to Agent Orange. The Board further notes that the examiner did not specifically address the Veteran’s reports of throat and swallowing problems during service and since service. See Davidson, 581 F.3d 1313 (Fed. Cir. 2009). A May 2015 report form OhioGastro indicates that the Veteran had no definitive esophageal related dysphagia. The examiner reported that their work-up only revealed that the Veteran had oropharyngeal based dysphagia. The examiner indicated that, overall, the Veteran’s history showed that his symptoms had been present for more than thirty years. The Board notes that there is no indication that the examiner, pursuant to the May 2015 report from OhioGastro, reviewed the Veteran’s claims file. Additionally, the examiner did not specifically provide a rationale regarding his statement that the Veteran’s symptoms had been present for over thirty years. In light of the above, the Board finds that the Veteran has not been afforded a VA examination, with the opportunity to obtain responsive etiological opinions, following a thorough review of the entire claims file, as to his claim for service connection for chronic throat inflammation, to include dysphagia. Such an examination must be accomplished on remand. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC), or any other appropriate service department or repository, to verify the dates of all the Veteran’s periods of active duty, active duty for training, and inactive duty training in the Army or Florida Army National Guard. Also request that a search be conducted for any additional service treatment records pertaining to the Veteran, to include during his claimed Florida Army National Guard service in 1971. If more details are required to conduct such search, the Veteran should be asked to provide the necessary information. The Veteran’s service personnel records should be obtained as well. The results of such request, whether successful or unsuccessful, should be documented in the claims file, and the Veteran informed of any negative results. 2. Ask the Veteran to identify all medical providers who have treated him for chronic throat inflammation, to include dysphagia, since February 2015. After receiving this information and any necessary releases, obtain copies of the medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain the records, inform the Veteran of such, and advise him that he may obtain and submit those records himself. 3. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptomatology regarding his claimed chronic throat inflammation, to include dysphagia. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of his claimed chronic throat inflammation, to include dysphagia. The entire claims file must be reviewed by the examiner. The examiner must diagnose all current throat disorders, to include chronic throat inflammation and dysphagia. The examiner must opine as to whether it is as at least as likely as not that any currently diagnosed chronic throat disorders, to include chronic throat inflammation and dysphagia, are etiologically related to or had their onset during his period(s) of service, to include presumed Agent Orange exposure during service. The examiner must specifically acknowledge and discuss the Veteran’s treatment for throat problems during service and his competent reports of throat problems and swallowing problems during service and since service. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. D. Regan, Counsel