Citation Nr: 20026053 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 17-58 848 DATE: April 15, 2020 ORDER Service connection for a back disability, to include lumbar spinal stenosis and bulging disc, is granted. Service connection for nose laceration residuals is denied. REMANDED The issue of service connection for residuals of a right little finger injury is remanded. FINDINGS OF FACT 1. The weight of the competent and probative evidence is at least in equipoise as to whether a back disability had its onset in or is otherwise related to the Veteran’s period of active service. 2. The preponderance of the evidence of record is against finding that the Veteran has had a current diagnosis for nose laceration residuals at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for nose laceration residuals have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to July 1970 and additional service with the Army National Guard for over 20 years. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Service connection for a back disability. The Veteran contends low back pain began during service after he fell off a 35-foot pole and that it has persisted since discharge from active service. See March 2020, Appellate brief; November 2017, VA form 9; April 2016, Notice of Disagreement (NOD); March 2016, VA examination. After review of the record, the Board finds that the criteria for service connection for a back disability have been met. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time, or where clear and unmistakable evidence or medical judgment establishes that an injury or disease preexisted service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The Board notes the record does not contain any evidence of back pain or a back disability being noted upon entry; accordingly, the Veteran is presumed sound in this regard. The Board further finds that this presumption has not been rebutted by clear and unmistakable evidence to the contrary. See May 1968, Induction examination. The record contains competent diagnoses of spinal stenosis and lumbar bulging discs. March 2016, VA examination; March 2016, Private treatment record. The Board, accordingly, finds competent evidence of a current disorder. Service treatment records (STRs) indicate the Veteran fell off a pole during active service, but there was no ill effect from the fall. National Guard physical examinations in 2000, 2005, and 2006, indicate chronic low back pain and a Lortab prescription for back pain. See STRs dated February 1969, October 1990, August 2000, April 2005, and November 2006. Post-service treatment records indicate the Veteran’s continuous complaints of back pain and receipt of treatment from Alan L. Whiton, M.D., a private orthopedist, for back pain. VA treatment records dated February 2015 through September 2019. In March 2016, during a VA examination, the Veteran stated he fell off a 35-foot pole while on active duty and hurt his back, the back pain was never addressed, no x-rays were taken at the time of injury, and back pain continued throughout military service. The VA examiner opined the claimed condition was less likely than not incurred in or caused by the Veteran’s period of active service. The VA examiner noted a service treatment record indicating the Veteran fell off a pole with no ill effect but reasoned there was not enough medical evidence to determine etiology without resorting to mere speculation. The VA examiner further reasoned there is no established back disability from discharge until April 2005. March 2016, VA examination The March 2016 VA examination for the back is inadequate because the Board is unable to determine whether the examiner’s inability to offer an etiology opinion without resolving to mere speculation is due to a deficiency in the examiner, as opposed to lack of knowledge in the medical community more generally. See Sharp v. Shulkin, 29 Vet. App. 29, 33 (2017). Further, the VA examiner did not consider the Veteran’s lay statements that back pain began during service and has persisted since discharge from active service. See March 2016, VA examination; Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history). In February 2018, Dr. Whiton, the Veteran’s private physician, opined the Veteran likely sustained injuries to his lumbar discs, to include subsequent development of spinal stenosis, during active service. Dr. Whiton noted the Veteran’s long history of back problems that began with injuries while serving in the military. See February 2018, Private treatment record. In light of the above, the Board finds the weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s current back disability had its onset in or is otherwise related to his period of active service. Specifically, the Board notes the positive nexus opinion from the Veteran’s treating physician and the Veteran’s well-documented low back pain that persisted since discharge from active service. See March 2016, VA examination; VA treatment records dated February 2015 through September 2019. The Board finds the Veteran’s lay statements concerning the onset and continuation of low back pain to be competent, credible, and highly probative. Jandreau, 492 F.3d at 1377. Resolving all reasonable doubt in the Veteran’s favor, service connection for a back disability is warranted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-58. 2. Entitlement to service connection for nose laceration residuals. The Veteran contends he sustained an in-service nose injury and received stitches. See March 2020, Appellate brief; April 2016, NOD. After review of the record, the Board finds that the criteria for service connection for nose laceration residuals have not been met. Service treatment records (STRs) indicate the Veteran was treated for a laceration to his nasal region, to include five stitches, after he fell off a pole. February 1969, STR. Post-service treatment records, both VA and private, do not show a current diagnosis for nose laceration residuals. Indeed, in May 2019, physical exam of the Veteran’s nose revealed bilateral nasal patency, midline septum, and no mucus, polyps, or sinus tenderness. See VA treatment records dated February 2015 to September 2019; Private treatment records dated March 2016 and February 2018. In April 2017, an in-person VA examination for scars and disfigurement was conducted after review of the claims file. The VA examiner did not find any scars on or disfigurement of the Veteran’s head, face, neck, trunk, or other extremities, and no. pertinent physical findings, complications, signs, or symptoms (such as muscle or nerve damage) were associated with any scars or disfigurement. Specifically, the examiner noted there is no visible scarring to the Veteran’s nose. Additionally, the VA examiner noted there were no scars or disfigurement that resulted in limitation of function. April 2017, VA examination. In light of the above, the preponderance of the evidence of record is against finding that the Veteran has had nose laceration residuals at any time during or approximate to the pendency of the claim. The Board acknowledges that the Veteran sustained an in-service laceration to the nasal region in 1969, but there is no evidence of record to substantiate a current diagnosis or nose pain resulting in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018) (holding pain alone could constitute a disability under 38 U.S.C. § 1110 when it results in functional impairment). Most notably, the Veteran did not describe any current symptoms concerning nasal laceration residuals, did not state his nose was painful, or that he currently has a visible scar in his nasal region. The Board, accordingly, finds that service connection for nose laceration residuals is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the Veteran’s claim for service connection for melanoma must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-58. REASONS FOR REMAND The issue of service connection for residuals from a right little finger injury. Veteran contends he broke his right little finger in 1993 during National Guard drills. See March 2020, Appellate brief; April 2016, NOD; February 2016, VA form 21-526EZ. In August 1995, a military examiner noted the Veteran sustained a compound fracture to his right little finger in March 1993. The Veteran’s personnel file shows that the Veteran received 18 active duty retirement points between December 12, 1992, and December 11, 1993, and another 15 active duty points between December 12, 1993, and December 11, 1994. This indicates the Veteran had periods of active duty for training (ACDUTRA) during the time frames he was injured in 1993. The claims file, however, does not provide any specific dates of ACDUTRA or INACDUTRA for the Veteran in 1993 or Line of Duty (LOD) determinations. See August 1995, STR; March 2007, Military personnel records. This matter is REMANDED for the following action: 1. Verify the Veteran’s periods of active duty and Army National Guard service, to include periods of ACDUTRA and INACDUTRA in the Army National Guard from the appropriate records repositories. Document any negative responses received. 2. After completing directive #1, the Agency of Original Jurisdiction should compile a complete list of any verified periods of active duty, ACDUTRA, and INACDUTRA during the Veteran’s Army National Guard service and include it in the electronic claims file for review. 3. After completing directives #1 and #2, obtain the Veteran’s full medical and personnel records for his Army National Guard service from the appropriate records repository and associate all available records with the claims file. Records shall include, but not be limited to, any LOD determinations. If no additional Army National Guard Records can be located, make a formal finding as to their unavailability. Inform the Veteran of the status of these records in accordance with 38 C.F.R. § 3.159(e) and advise him that alternative forms of evidence can be developed to substantiate his claim. 4. After completing directives #1 through #3, if Line of Duty determinations are found and/or development supports the Veteran’s assertions of injuries during ACDUTRA or INACDUTRA, schedule the Veteran for an examination with an appropriate clinician to determine the nature, extent, and etiology for any claimed residuals from a right little finger injury. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Identify all disorders or residuals from a right little finger injury that are currently present (or present any time during the pendency of this claim). If the examiner disagrees with a diagnosis already established in the medical records, he or she should so state and explain why. Even if there is no diagnosed disorder, pain resulting in functional impairment may constitute a disability for service-connection purposes. If present, describe any functional impairment; if not, state why (b.) Whether it is at least as likely as not (50 percent or greater probability) that any disability or residuals from a right little finger injury manifested during or is otherwise related to the Veteran’s period of active service, ACDUTRA, or INACDUTRA. The Veteran is competent to report his symptoms, experiences, and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, Associate Counsel 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.