Citation Nr: 1827704 Decision Date: 05/04/18 Archive Date: 05/14/18 DOCKET NO. 10-18 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a low back disability, to include degenerative disc disease and degenerative joint disease of the lumbar spine. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1974 to March 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2014, the Board remanded the above issue for further evidentiary development. In May 2016, the Board denied the claim, and following a timely appeal of the denial to the United States Court of Appeals for Veterans Claims (Court), a March 2017 Order vacated and remanded the portion of the May 2016 Board decision that denied entitlement to service connection for a low back disability on a direct service connection basis pursuant to a Joint Motion for Partial Remand (JMPR). In August 2017, the Board remanded the above issue for additional proceedings consistent with the JMPR. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). FINDING OF FACT The Veteran's low back disability was incurred in service. CONCLUSION OF LAW The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the use of continuity of symptomatology to establish service connection, in lieu of a medical opinion, is limited to those diseases listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309 (a) as "a substitute way of showing in-service incurrence and medical nexus.") The Veteran contends that service connection is warranted for a low back disability as a result of a back injury during service. He specifically asserts that he has had back pain as a result of injuring and aggravating a sore on his tailbone during boot camp when he was practicing hand to hand combat training on a beam. He states that he was on a beam and fell on his lower back. He went to the infirmary and was told he was just bruised but did not undergo x-ray examination. The Veteran alleges he has had back pain since the injury in service but that he additionally underwent surgery of a pilonidal cyst during service before he was medically discharged. The Veteran contends that he has had worsening back pain since service, including numbness and tingling of his legs. He has difficulty sitting and walking. He contends that his current low back disability is related to the in-service fall and surgery. See May 2008, June 2008, and March 2009 Statements in Support of Claim, March 2010 Correspondence, April 2010 Substantive Appeal, March 2016 Correspondence, and January 2018 Correspondence. As an initial matter, service treatment records show that the Veteran reinjured and aggravated his pilonidal cyst and that he received treatment, including surgery with healing complications, for his cyst but continued to complain of pain. In a December 1975 report, the Central Physical Evaluation Board noted that the Veteran had complained of chronic pain in the area of the pilonidal cyst incision that was aggravated by running, sitting, performing sit-ups or any physical activity. The Veteran had normal lumbosacral spine x-rays but did complain of pain in the area of the scar. The Veteran underwent a lidocaine injection, which worsened the pain. The medical board determined that the Veteran was unfit for duty due to his chronic pain. As there is no dispute as to the existence of a current low back disability, nor is there any real dispute as to in-service incurrence, the outcome of the case turns on whether a low back condition is related to service. A November 1979 VA examination report reflects complaints of low back pain and difficulty with sitting and lifting heavy objects. At the examination, the Veteran reported bilateral leg numbness and pain since the in-service surgery. The examiner determined that the Veteran had no tenderness of the sciatic nerve and no limitation with straight left raising despite the Veteran's complaints of pain at the sacral area when his legs were elevated. Post-service treatment records from June 1998 to present show that the Veteran has endorsed a history of back pain since the 1970s and has undergone treatment for chronic low back pain, for diagnoses of degenerative disc disease and degenerative joint disease of the lumbar spine, and for lumbar radicular symptoms. Treatment has included nerve root block injections and painkillers. The Veteran was provided with a VA examination for his lumbar spine disability in June 2008. The examiner diagnosed the Veteran with degenerative disc disease and degenerative joint disease of the lumbar spine, with erectile dysfunction as secondary to his degenerative disc disease. The examiner concluded that the Veteran's degenerative disc disease and degenerative joint disease of the lumbar spine were less likely than not aggravated by his in-service treatment of a pilonidal cyst, but did not provide a rationale for this conclusion. In May 2014, the Board found this opinion inadequate as it was conclusory and did not have a well-supported rationale. Pursuant to the May 2014 remand, the Veteran was afforded another examination and a supplemental opinion was obtained in July 2014. The examiner opined that the Veteran's current condition was less likely than not incurred in or caused by service. The examiner noted the Veteran claimed to have been hit in the lower spine during training which led to hospitalization and treatment for a cyst. The VA examiner pointed out that the Veteran's degenerative joint disease was first documented by imaging in June 1998, and the claims file is silent regarding any back injuries during service or within one year of discharge from service that might have provided a nexus for the development of degenerative joint disease of the lumbar spine. While in service, the Veteran suffered from a recurrent pilonidal cyst (not a back condition) which had first manifested prior to service. The examiner reported that medical literature shows pilonidal cysts to be a skin condition, not a back condition, and one typical definition of pilonidal disease stated that such is a chronic skin problem found most often in the sacrococcygeal region. The examiner continued that the back disability is less likely than not proximately due to or the result of the Veteran's service connected residuals of a pilonidal cyst. The reasoning was that the location of the Veteran's pilonidal cyst was noted to be around the coccyx. The Veteran underwent a pilonidal cystectomy during service for this soft tissue/skin condition. The examiner explained that the review of the surgical textbooks shows that pilonidal cystectomies involve surgery of the soft tissue, and not the surrounding bone and/or joints. The medical literature, including NIH, does not find that surgery for a pilonidal cyst, including healing by secondary intention, provides a nexus for the development of degenerative joint disease of the spine. In the March 2017 JMPR, the Court found that the July 2014 VA examiner's opinion was inadequate as it failed to address the Veteran's claims of continuous symptoms of the lower back since service or whether his low back disability was related to being struck in the back during service. Pursuant to the JMPR and the August 2017, the Veteran was afforded another VA examination in September 2017. The examiner opined that the Veteran's lumbar degenerative disc disease and degenerative joint disease were less likely than not incurred in or caused by service. The examiner stated that there was nothing in the service treatment records to support the onset of degenerative joint disease or degenerative disc disease during service or pain consistent with a condition that could lead to these diseases, which are due to mechanical forces and not surgery that does not involve the spine itself. The examiner further reasoned that the Veteran's contention that he hit his back in service and has had progressively worsening back pain was not supported by the facts, specifically service treatment records and a normal separation examination. The examiner also explained that although the Veteran has complained of lower back pain, this was at the operative site and there was no evidence of a mechanical back condition until many years after service. He opined that the Veteran's complaints of pain during service were clearly and unmistakably due to his post-operative cyst He further stated that the Veteran's back pain at the 1979 examination did not constitute a paraspinous muscle or spine condition. The examiner further stated that the Veteran's current low back disability would be related to other factors than service because he served on active duty for less than two years. The Board finds that the examiner's rationale violated the rule espoused in Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) that a "medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant's current disability and his military service." Furthermore, each of the VA examination reports are flawed, as they relied on a lack of documentation or diagnosis and did not take account of the Veteran's lay statements as to his symptoms. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Moreover, the Veteran is competent to report certain types of in-service symptoms and injuries, which are capable of lay observation, such as back pain and resultant bilateral leg numbness and tingling. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Board finds that the Veteran is competent to report that he experienced continuous back pain since he fell on his back during boot camp training. There is no reason to doubt the credibility of the Veteran's reports, particularly given the consistency of the statements including those made to health care professionals regarding longstanding back pain. See Fed. R. Evid. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). The Veteran's competent lay statements are therefore of equal probative weight as the flawed VA medical opinions. The Board accordingly finds that the evidence of record for and against the claim is at least in relative equipoise. Resolving doubt in favor of the Veteran, the claim of entitlement to service connection for a low back disability is granted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Service connection for a low back disability is granted. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs