Citation Nr: 18153470 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 08-03 238 DATE: November 27, 2018 ORDER Service connection for degenerative arthritis and intervertebral disc syndrome of the thoracolumbar spine is granted. REMANDED Service connection for a right elbow disability, to include as secondary to a service-connected right shoulder disability, is remanded. FINDING OF FACT The Veteran’s degenerative arthritis and intervertebral disc syndrome of the thoracolumbar spine is related to service. CONCLUSION OF LAW The criteria for service connection for degenerative arthritis and intervertebral disc syndrome of the thoracolumbar spine have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Coast Guard from August 1977 to May 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 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, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In April 2017, the Board denied the appeal. That decision was appealed to the United States Court of Appeals for Veterans Claims (Court). In a January 2018 Joint Motion for Remand (Joint Motion), the Court vacated the April 2017 decision due to the Board’s reliance on inadequate medical examinations. With regard to the lumbar spine disability, the parties noted that while in service, the Veteran played competitive golf and tennis for U.S. Coast Guard teams. The parties found that the Board’s statement of reasons and bases was inadequate because neither the Board nor a May 2016 VA examiner considered whether the in-service golfing may have caused his lumbar spine disability. The parties directed the Board to obtain a new VA examination addressing this matter. Given the August 2018 medical opinion subsequently submitted by the Veteran, discussed below, the Board finds a remand is avoidable. The Veteran has current degenerative arthritis and intervertebral disc syndrome of the thoracolumbar spine, documented on VA examination in May 2016 and in the August 2018 private medical report. Service treatment records (STRs) document low back complaints and treatment on a number of occasions. In December 1979, x-rays were performed due to a finding of paraspinal muscle spasms with an unknown etiology. In November 1980, the Veteran reported having back pain for the past two years. He further reported experiencing recurrent back pain in reports of Medical History dated from November 1980, November 1984, September 1986, March 1987, January 1988, February 1989, March 1992, October 1992, November 1993, and November 1999. The 1986, 1987, 1988, and 1999 examiners noted a history muscle strain and muscle spasms. On the matter of etiology, the record contains several opinions. Against the claim are the opinions of April 2010 and May 2016 VA examiners. The April 2010 examiner diagnosed degenerative disc disease and degenerative joint disease. She opined the disability was less likely than not related to service as the STRs documented back sprains and strains, which involve the muscles and ligaments, while the current disability involves the discs and vertebral bodies. She stated that the two are unrelated. With regard to the May 2016 VA examination, as the Court determined that it was inadequate, it is not persuasive and will not be discussed. In support of the claim are the opinions of March 2009 and August 2018 private providers. In March 2009, Dr. Z., reviewed the Veteran’s treatment notes and diagnostic reports. He diagnosed the Veteran with back and hip problems that were consistent with years of vigorous activity in the military. In August 2018, Dr. P. reviewed the Veteran’s claims file and interviewed him. He recounted the Veteran’s in-service duties and the numerous STRs documenting low back problems. He also summarized the post-service medical evidence. He opined that the current degenerative arthritis and intervertebral disc syndrome of the thoracolumbar spine were at least as likely as not related to military service. As rationale, Dr. P. noted that on examinations performed on entry into service in December 1976 and March 1977, no back abnormalities were found. However, subsequent STRs documented numerous instances of low back complaints and diagnoses. Dr. P. opined that to the extent the May 2016 VA examiner determined the current disability was due to aging and the Veteran’s continued active lifestyle following service, the Veteran’s lifestyle had become significantly limited within just a few years of discharge. Dr. P. opined it was more likely that the current disability was attributable to the heavy physical work and athletic activity performed over the course of 23 years of military service, during which the Veteran consistently reported back pain. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in his favor, the Board concludes that the Veteran is entitled to service connection for degenerative arthritis and intervertebral disc syndrome of the thoracolumbar spine. This is supported by the findings of the March 2009 and August 2018 examiners. The August 2018 report of Dr. P., in particular, is adequate for adjudication. Dr. P. based his conclusion on the Veteran’s pre- and post-service medical records, including diagnostic reports. He considered and discussed the Veteran’s in-service athletic rigors in linking the current disability to military service, as raised by the Court. The April 2010 examination report provides a contrasting viewpoint. The May 2016 examination report is of no persuasive value. Thus, at a minimum, the evidence is at least in equipoise in showing that the Veteran’s low back disability is attributable to service. In resolving all reasonable doubt in the Veteran’s favor, service connection is warranted. On a final note, while the Veteran’s attorney also requests that service connection for radiculopathy associated with the lumbar spine disability be awarded, this is a separate matter that is not within the Board’s jurisdiction. Service connection for bilateral radiculopathy was denied in a June 2017 rating decision, and a notice of disagreement was filed. The RO is in the midst of processing the claim for appellate review. Further, in assigning the rating for the now-service-connected lumbar spine disability, the RO may award separate ratings for any associated neurological abnormalities, in accordance with regulations pertinent to the spine. REASONS FOR REMAND The Veteran’s representative requests a remand of the claim for service connection for a right elbow disability, in accordance with the findings of the Joint Motion, and the Board agrees this development is required. In the Joint Motion, the parties found that the May 2016 VA examiner had not addressed whether the service-connected right shoulder disability aggravated the right elbow disability. The examiner also did not consider whether the Veteran’s in-service golfing and tennis caused his current right elbow disability. A further examination addressing these matters is needed. The matter is REMANDED for the following action: Afford the Veteran a VA examination to obtain evidence addressing the etiology of his current right elbow disability. The examiner must opine on whether it is at least as likely as not that the current right elbow disability (i.) began during active service or is related to an in-service injury, event, or disease, or (ii.) was caused OR AGGRAVATED (chronically worsened) by the service-connected right shoulder disability. In rendering these opinions, the examiner must consider: • The Veteran played competitive golf and tennis for U.S. Coast Guard teams for many years during military service • June 1980 service treatment record documenting a right elbow injury, with an assessment of “neural trauma vs. tendon trauma” • June 2004 private medical record noting that the Veteran’s medial epicondylitis may have been aggravated by playing golf • April 2010 VA examiner’s finding that the right elbow disability was not caused by or the result of military service. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel