Citation Nr: 18159979 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-57 511 DATE: December 20, 2018 ORDER Resolving all doubt in his favor, service connection for degenerative disc disease and osteoarthritis of the low back is granted. REMANDED Entitlement to service connection for bilateral foot condition is remanded. Entitlement to service connection for heart condition, to include Wolff-Parkinson-White syndrome, is remanded. Entitlement to an initial rating in excess of 10 percent for right elbow epicondylitis is remanded. Entitlement to an increased compensable rating for residuals of right wrist fracture is remanded.   FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his degenerative disc disease and osteoarthritis of the lumbar spine is at least as likely as not related to his military service. CONCLUSION OF LAW The criteria for service connection for degenerative disc disease and osteoarthritis of the lumbar spine are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1992 to January 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. 309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for degenerative disc disease and osteoarthritis of the low back The Veteran seeks service connection for low back pain. As an initial matter, the Board finds the Veteran has degenerative disc disease and osteoarthritis of the low back disability. An August 2013 VA examination report shows diagnoses of back strain, degenerative disc disease and osteoarthritis of the back. This diagnosis was based on associated August 2013 x-rays that revealed moderate to severe osteoarthritis and degenerative disk disease and disk space narrowing. The Veteran has alleged that he suffered from low back pain since service. He reported at his VA examination that he had to carry heavy equipment on his back during physical training exercises. He indicated that he was also treated for back pain in June 1995, during active duty. Buddy statements received in November 2016 indicate that the Veteran was seeking treatment for back issues from physical fitness training, showed signs of discomfort while performing his assigned duties, and would sometimes walk around the office due to being unable to stay seated for long periods of time at his work location. The Veteran’s service treatment records reflect that in June 1995 the Veteran was treated for low back pain. Examination showed mild paraspinal spasm at L4-L5, normal motor and reflex findings. The examiner assessed “mechanical LBP”, and prescribed Motrin. The Veteran was to return to the clinic as needed. In July 2015 the Veteran returned for intermittent coccygeal pain. The Veteran’s service treatment records are otherwise silent for low back complaints. However, the Board notes that a gap in medical treatment does not affirmatively prove that a condition did not exist. The Veteran underwent a VA examination in April 2013. The Veteran stated that his low back problems began during service, and that his condition deteriorated from there. He indicated that over the last seven years his back pain had gotten progressively worse. The examiner diagnosed chronic lumbar strain and Intervertebral disc syndrome (IVDS) of the lumbar spine with radiculopathy and bilateral sciatic nerve involvement. The examiner checked the box that the claimed condition was as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury. The examiner later opined, however, that without resorting to mere speculation he could not opine that the Veteran’s low back disorder was service connected. The examiner explained that although the Veteran presently complained of a lower back pain problem with radiation in both legs that he stated began in service, there were no service records indicating any treatment for low back disorder. A VA contract examination was obtained in August 2013 from a different examiner. The Veteran reported that after he was honorably discharged from the military, his back problems continued and he sought medical care from a chiropractor. He reported daily lower back pain, with flares on random days to the extent he could not get out of bed. The examiner diagnosed back strain, degenerative disc disease, and osteoarthritis of the back. The examiner opined that the Veteran’s back condition was at least as likely as not (greater than 50-50 probability) incurred during his military service. The examiner explained that repeated back strain from heavy equipment causes degradation of spinal discs over time that leads to degenerative disk disease and osteoarthritis. In October 2013, the VA contract examiner provided a supplemental statement. The examiner opined that the Veteran’s degenerative disc disease and osteoarthritis was related to back strain that during service. The examiner further explained that repeated back strain from carrying heavy equipment causes degradation of spinal discs over time leading to degenerative disc disease, osteoarthritis, and chronic pain. The Board notes the conflicting medical evidence of record as to whether the Veteran’s current low back disabilities were incurred or are related to his active duty service. Despite the negative opinion provided in April 2013, the Board finds probative the contract examiner’s subsequent opinion and rationale to support a nexus. Based on the foregoing, the Board finds that the lay evidence of record combined with the August 2013 contract examination report and October 2013 supplemental statement places the evidence as to whether the Veteran’s current back disabilities are related to his military service, to include his consistent reports back pain since service and buddy statements observing symptoms of back pain while in service, at least in equipoise. Therefore, the Board resolves all doubt in his favor and finds that service connection for degenerative disc disease of the lumbar spine is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral foot condition is remanded. The Veteran seeks service connection for a bilateral foot condition. The Veteran alleges that his bilateral foot condition is secondary to his degenerative disc disease of the lumbar spine. The Board has granted service connection for degenerative disc disease and osteoarthritis of the lumbar spine. The issue of entitlement to secondary service connection for bilateral foot condition is now at issue. Accordingly, a medical opinion along with supporting clinical rationale is needed to properly consider the theory of secondary service connection. 2. Entitlement to service connection for heart condition, to include Wolff-Parkinson-White syndrome The Board cannot make a fully-informed decision on the issue of service connection for a heart condition because no VA examiner has opined whether the Veteran’s current diagnosis may be related to an episode of syncope during service in May 1993. Findings at that time included an EKG showing “SL early repolarization.” He was noted to have had a “[l]ast episode x6 mos ago.” In light of this history, the Board finds that a VA examination is needed. 3. Entitlement to an initial rating in excess of 10 percent for right elbow epicondylitis is remanded. 4. Entitlement to an increased compensable rating for residuals of right wrist fracture is remanded. The Veteran contends that he is entitled to a higher initial rating for his service-connected right elbow epicondylitis and an increased rating for residuals of right wrist fracture. The most recent examinations of the wrist and elbow were conducted in April 2013. Remand for new VA examinations to address the Correia and Sharp standards is required. 38 C.F.R. § 4.2. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral foot condition. The examiner is asked to identify the Veteran’s diagnosed bilateral foot condition(s), to include plantar fasciitis. For each diagnosed disability, the examiner is asked to answer each of the following questions: a. Whether it is at least as likely as not (a 50 percent or greater probability) incurred in, or otherwise related to, the Veteran’s active service. b. Whether it is at least as likely as not that the bilateral foot condition is either caused or aggravated by his service-connected degenerative disc disease and osteoarthritis of the lumbar spine. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of a heart condition. The examiner is asked to address whether the diagnosis is at least as likely as not related to an in-service injury, event, or disease, including an episode of syncope in May 1993, where findings at that time included an EKG showing “SL early repolarization.” 4. Schedule the Veteran for a VA examination to assess the current severity of his right wrist and elbow disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and after repeated use over time, and the degree of functional loss during flare-ups and after repeated use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to each disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or an opinion regarding flare-ups and after repeated use over time, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Lauritzen, Associate Counsel