Citation Nr: 20082016 Decision Date: 12/31/20 Archive Date: 12/31/20 DOCKET NO. 16-30 747 DATE: December 31, 2020 ORDER Entitlement to service connection for a disability manifested by back pain with functional loss is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the Veteran’s chronic back pain at least as likely as not had its onset during service. CONCLUSION OF LAW The criteria for service connection for a disability manifested by back pain with functional loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from July 1999 to October 2008. This case is before the Board of Veterans’ Appeals (Board) from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans’ Law Judge at a March 2020 hearing. In May 2020, the Board remanded this claim to the RO for additional development. Finding there has been substantial compliance with the Board’s remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board may proceed with appellate review. Back pain The Veteran contends that his back pain began while serving aboard submarines and has continued to the present (6/13/2019 C&P Exam, pg. 2; 6/24/2016 Form 9; 3/06/2020 Correspondence, pg. 11). The Veteran noted squatting to maneuver throughout the submarine, which was challenging due to his height (3/06/2020 Correspondence, pg. 10). The Veteran has also asserted that his service-connected ankle and knee disabilities have contributed to his current back disability (3/06/2020 Correspondence, pg. 11). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Secondary service connection may be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). Post-service medical records document routine complaints of back pain, and a described history of back pain beginning during service in approximately 2005 (7/24/2020 CAPRI, pg. 5; 3/27/2020 CAPRI, pg. 247). Diagnoses of thoracolumbar degenerative joint disease and arthritis were noted during a March 2015 VA examination (5/05/2015 C&P Exam, pgs. 1 and 7), and a January 2016 diagnosis of degenerative arthritis of the spine was noted during a June 2019 examination (6/13/2019 C&P Exam). Most recently, an October 2020 examiner indicated the Veteran was diagnosed with a lumbosacral strain, not finding arthritis, fracture, or thoracolumbar degenerative joint disease (10/12/2020 C&P Exam). X-ray reports of record did not suggest a spine diagnosis (10/12/2020 C&P Exam; 3/27/2020 CAPRI, pg. 248). While pain is generally not a diagnosis for VA purposes, VA recognizes pain as a disability where there is also functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In this case, the October 2020 VA back examiner found the Veteran has functional impairment of the back due to pain (10/12/2020 C&P Exam, pg. 3). In light of the finding of functional impairment, the Board finds the Veteran's pain is sufficient as a diagnosis for VA purposes. Turning to whether the Veteran’s current diagnosis of back pain is related to his service-connected disabilities of the lower extremities, the Board notes the Veteran is service connected for several disabilities of the lower extremities: left and right knee disabilities, a left ankle disability, bilateral plantar fasciitis, and left heel spurs, and bilateral tinea pedis (10/22/2020 Rating Decision – Codesheet). The October 2020 examiner provided an opinion as to secondary service connection, finding that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of service-connected conditions or aggravated beyond its natural progression (10/12/2020 C&P Exam). The examiner explained the medical record review does not support compensatory origin and there was insufficient evidence to support an association. The examiner noted there was no treatment records suggesting the Veteran's service-connected conditions impacted his back by causing a chronically abnormal gait, that is present over an extended period of time, meaning years. The examiner explained a temporary abnormality in gait is unlikely to have any effect on the back, concluding thoracolumbar and lumbosacral strain with muscle spasms, IVDS, and bilateral lower extremity radiculopathy, was less likely than not proximately due to or the result of the Veteran's service-connected conditions. The examiner also provided an opinion that the Veteran's thoracolumbar and lumbosacral strain with muscle spasms, IVDS, and bilateral lower extremity radiculopathy was less likely than not aggravated beyond its natural progression by service-connected disabilities of the lower extremities. The Board notes a December 2015 physical therapy note of record, referencing myofascial pain of paraspinals of lumbar spine, as well as myofascial pain along trapezius, rhomboids, levator scapulae. This report contained a discussion regarding the importance of core strengthening in conjunction with knee rehabilitation, as all problems are inter-connected. The October 2020 examiner explained that note was primarily about the knees and indicated that the Veteran was to continue with knee rehabilitation as it has the possibility of affecting the back. The examiner opined that the Veteran’s knee disabilities were not significant enough to have impacted the back and the reported pains are of the muscles, and muscle pains would not affect the spine. While the medical evidence weighs against secondary service connection or aggravation, the Board finds that service connection for back pain is warranted on a direct basis. As to in-service incurrence, the Veteran's service treatment records are silent for complaints of back pain. Nonetheless, the record includes a number of statements by the Veteran, to include during his hearing and to medical providers while seeking to alleviate his pain, indicating the onset of his back pain was during service in approximately 2005 (7/24/2020 CAPRI, pg. 5; 3/27/2020 CAPRI, pg. 247; 3/06/2020 Correspondence, pgs. 8-11). Given the common occurrence of back pain and the consistency throughout the record of the Veteran’s description, the Board has no reason to doubt the credibility of the Veteran's assertions. Moreover, the activities described as consistent with the types and circumstances of the Veteran’s service. Thus, both an in-service event and in service symptoms are deemed established here. The Board therefore finds in-service onset of his chronic back pain that has not ceased since his active service (7/24/2020 CAPRI, pg. 5). The Board finds the VA examinations of record sufficient, and although they have indicated there is no nexus between the spine disabilities and the Veteran’s service, as explained by the October 2020, the Veteran suffers from pain of the muscles, and muscle pain would not affect the spine (10/12/2020 C&P Exam, pg. 4). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current disability manifested by back pain with functional loss arose in service. Resolving doubt in favor of the Veteran, the Board finds that service connection for back pain is warranted, and the Veteran’s claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.