Citation Nr: 20053530 Decision Date: 08/12/20 Archive Date: 08/12/20 DOCKET NO. 14-42 856 DATE: August 12, 2020 ORDER Entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for a right lower extremity disability is granted. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran’s lumbar spine disability is etiologically related to his in-service back injury. 2. The evidence is in equipoise as to whether the Veteran’s right lower extremity disability is etiologically related to his lumbar spine disability. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria to establish service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria to establish service connection for a right lower extremity disability as secondary to the Veteran’s service-connected lumbar spine disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from September 1968 to July 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file and has been reviewed. By way of procedural background, this matter was previously before the Board in June 2018, at which time the Board remanded the Veteran’s claims for service connection for a lumbar spine disability and right lower extremity radiculopathy for additional development. The Board also notes that in its June 2018 decision, it dismissed the Veteran’s claim for service connection for hypothyroidism (per the Veteran’s proper withdrawal of the claim) and granted his claim for service connection for a right ear hearing loss disability. As reflected on the title page of this decision, the Board has broadened the Veteran’s claim for service connection for radiculopathy of the right lower extremity to a claim for a right lower extremity disability in order to contemplate all of the Veteran’s right lower extremity symptoms, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board also recharacterized the Veteran’s claim for service connection for the residuals of a lower back injury to one for a lumbar spine disability. The Board observes that the Veteran submitted medical evidence relevant to his claims since the RO’s adjudication in a June 2020 Supplemental Statement of the Case (SSOC), without a waiver of initial RO consideration. See private treatment records from Ivy Rehab received July 2020; see also Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation or worsening of a non-service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). The Veteran’s diagnosed arthritis is considered by VA to be a “chronic disease” as listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Where a Veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A lay person is competent to report on the onset and reoccurrence of current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board must determine on a case-by-case basis whether a Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When all evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a lumbar spine disability Here, the Veteran asserts that he currently has a lumbar spine disability that is related to, or caused by, his active service. As an initial matter, the Board finds that the Veteran has current diagnoses of degenerative arthritis of the lumbar spine, lumbar disc degeneration, lumbar intersegmental dysfunction, lumbar disc displacement, and right-sided lateral recess herniation at the L5/S1 level. See VA treatment records dated March 2006 to February 2007; August 2006 private treatment record; March 2020 VA examination report. Therefore, a current disability is established. Next, the Board finds that the evidence is at least in equipoise as to whether the Veteran had an in-service injury to his back. In lay statements and testimony during the pendency of this appeal, including statements made to medical professionals, the Veteran consistently reported that during active service, he fell 8 to 10 feet from a ladder on the U.S.S. Little Rock and landed on his back. See June 2012 Statement in Support of Claim; May 2013 letter from Dr. E.F.; June 2013 lay statement; April 2018 Board hearing transcript; November 2019 letter from Dr. E.F.; February 2020 letter from Dr. A.K.; March 2020 VA examination report. The Board notes that Veteran submitted a photograph of the ladder from which he fell. See photograph received October 2019. The Veteran further reported that even though he went to sick bay the day after his fall (and several subsequent times during his service) with complaints of back pain and was issued “all-purpose pills” or aspirin, no formal record was made regarding his visits to sick bay. See June 2012 Statement in Support of Claim; June 2013 lay statement; April 2018 Board hearing transcript; March 2020 VA examination report. During the April 2018 Board hearing, the Veteran’s representative read into the record a letter from the Veteran’s spouse that stated, in pertinent part, “Before we were married, during our correspondence, sometime in 1969, I recall [the Veteran] writing to me that he had fallen off a ship ladder on the USS Little Rock and onto his back. He told me that his back was bothering him and that he went to sick bay and they were giving him pills for pain.” The Veteran is competent to report that he sustained an injury to his back during service, and the Board has no reason to doubt his credibility, especially since his account of the injury is corroborated by his spouse. Accordingly, an in-service event is established. Thus, the question remaining before the Board is whether there is a nexus between the Veteran’s in-service back injury and his current lumbar spine disability. On review, the Board finds that the evidence is in equipoise as to whether the Veteran’s current lumbar spine disability had its onset during active service. First, the Board finds the March 2020 VA medical opinions inadequate and affords them little to no probative value. The March 2020 VA examiner provided the following opinions: (1) “It is less likely as not (less than 50% probability) that the claimed RESIDUALS OF LOWER BACK INJURY was incurred in or caused by (the) fall off ladder during service.”; (2) “It is less likely as not (less than 50% probability) that the claimed low back disability had its onset in service or is otherwise causally or etiologically related to the reported in-service fall off a ladder.”; and (3) “It is less likely as not (less than 50% probability) that the 2006 herniated disc documented in the VA treatment notes…appears to stem from an initial injury or is representative of continued disc disease.” The VA examiner provided a lengthy rationale, apparently in support of all three opinions, focusing on the lack of “objective evidence” of a back condition or fall from a ladder in the Veteran’s service treatment records, no post-service treatment records showing a complaint of back pain until May 2006, the Veteran’s supposed use of the phrase “might have” in describing his in-service back injury after falling from a ladder to his private treatment provider, Dr. E.F., and the suggested unreliability of Dr. E.F.’s private medical opinions because they are “influenced by the doctor-patient relationship and [are] not based on the review of facts or objective evidence in the medical records.” The Board finds the March 2020 VA examiner’s rationale incomplete in light of Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006), which holds that a Veteran’s lay statements of symptomatology need not be corroborated by contemporaneous medical records to constitute competent evidence. Additionally, the Board notes that the Veteran did not use the phrase “might have” in describing his in-service injury to Dr. E.F. – instead, Dr. E.F. indicated that, during his first visit in November 2005, the Veteran “mentioned that he suffered a bad fall off of a ladder years prior while in the Navy which injured his back.” To the extent the March 2020 VA examiner mischaracterized the Veteran’s description of his in-service injury to Dr. E.F. and relied upon this mischaracterization to provide a negative opinion, the examiner’s opinion is based upon an inaccurate factual premise and is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Finally, the Board does not share the March 2020 VA examiner’s concerns about the reliability of Dr. E.F.’s medical opinions, since a private medical opinion may not be discounted solely because the opining medical professional did not review the claims file, and a treatment provider’s opportunity or opportunities to examine a claimant over time may be considered in assigning probative weight to a medical opinion, instead of automatically disqualifying the provider from being able to offer an unbiased opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Winsett v. West, 11 Vet. App. 420, 424-25 (1998). Second, the Board finds highly probative the Veteran’s reports of low back pain since his in-service injury. The Veteran is competent to report such observable symptoms, and he consistently reported in lay statements submitted in this appeal and in statements made to medical professionals that the pain in his lower back onset after the injury from falling off a ladder and has continued ever since. See June 2012 Statement in Support of Claim; May 2013 letter from Dr. E.F.; April 2018 Board hearing transcript; November 2019 letter from Dr. E.F.; February 2020 letter from Dr. A.K. Statements, such as these, made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the Veteran has a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Third, the Board finds Dr. E.F.’s private medical opinions to be adequate and highly probative. Dr. E.F. is a doctor of chiropractic who has treated the Veteran’s low back since November 2005. Significantly, Dr. E.F. indicated in an August 2017 letter that the Veteran “has been receiving treatment since November 2005 for a lower back injury that occurred while he was on a ship during military service.” In May 2012, May 2013, and November 2019, Dr. E.F. authored medical opinions in support of the Veteran’s claim. In his May 2012 and November 2019 letters, Dr. E.F. wrote, “It is my opinion that the fall [the Veteran] suffered while in the Navy likely initiated the disc injury [that] persists to the present day and should be considered permanent.” While largely duplicative of the May 2012 and November 2019 opinions, in a May 2013 letter, Dr. E.F. wrote, “It is my opinion that the fall [the Veteran] suffered while in the Navy more likely than not initiated the disc injury [that] persists to the present day and should be considered permanent.” (emphasis added). The Board finds Dr. E.F.’s medical opinions adequate and highly probative because they were rendered by a doctor of chiropractic who had treated the Veteran for many years, gave due consideration to the Veteran’s lay reports of his in-service injury and continuing back pain, and based his opinions on the Veteran’s chronic symptoms, MRI and X-ray findings, and physical examination results. Thus, Dr. E.F.’s medical opinions are the only adequate etiological opinions of record and they are favorable to the Veteran’s claim. As an aside, the Board acknowledges that in its June 2018 decision, it noted that Dr. E.F.’s rationale “conflicts with other evidence of record,” specifically, VA treatment notes reflecting that the Veteran was diagnosed with a herniated disc in December 2006, but there were no complaints of back pain or relevant diagnoses in earlier VA treatment records. However, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, supra. Moreover, the Veteran provided a credible explanation for why such complaints were not present any sooner in the record – “[D]own the line if my back hurt, I was young and never thought of it bothering me in the future[,] I just took some aspirin.” June 2012 Statement in Support of Claim. See also April 2018 Board hearing transcript (asked when he first sought formal treatment, the Veteran responded, “I just assumed my back, that was it. To go to formal treatment, I didn’t want to take the time off work. We were starting a family,” and further testified that he dealt with his back pain with over-the-counter pills and Ibuprofen). Accordingly, after resolution of all reasonable doubt in the Veteran’s favor, the Board finds that his lumbar spine disability is etiologically related to his in-service back injury. The appeal is therefore granted. 2. Entitlement to service connection for a right lower extremity disability The Veteran also asserts he is entitled to service connection for a right lower extremity disability, to include as secondary to his lumbar spine disability. As an initial matter, the Board finds that the Veteran is currently diagnosed with lumbar radiculitis involving the right leg. See May 2012, May 2013, and November 2019 letters from Dr. E.F. Accordingly, a current disability is established. Thus, the question remaining before the Board is whether the Veteran’s current right lower extremity disability is proximately due to, or aggravated by, his service-connected lumbar spine disability. On review, the Board finds that the evidence is in equipoise as to whether the Veteran’s right lower extremity disability is etiologically related to his service-connected lumbar spine disability. First, the Board finds the March 2020 VA medical opinion inadequate and affords it little to no probative value. In the March 2020 VA examination report, the VA examiner did not note any diagnosis pertaining to the right lower extremity and found that the Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy. In the March 2020 VA medical opinion, the VA examiner indicated that imaging studies of the Veteran’s lumbar spine “showed no finding of a nerve impingement to cause any radiculopathy. Medical literature supports that a radiculopathy of the right lower extremity is caused by nerve impingement,” and “Review of medical record shows no clinical finding of any focal neurological deficit that is seen in radiculopathy…Medical literature supports that radiculopathy is clinically manifest by focal neurological deficit in the distribution of the radicular nerve affected.” Additionally, the VA examiner noted, “Review of medical record shows that the veteran's providers loosely refer to his symptoms as radiculopathy --but this is not supported by their clinical examination findings or by the imaging studies of the lumbar spine as explained above.” However, pursuant to Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. The Veteran has competently reported that he experiences pain radiating down his right leg all the way to his foot, intermittent tingling, and numbness, and that these symptoms have flared up during and impacted his ability to shovel snow and complete yard work. See private treatment records dated February 2006 and March 2006 (Veteran complained of pain, tingling, and numbness in right leg and foot and the provider noted that the Veteran’s symptoms impaired his ability to complete gardening and yard care); April 2009 VA primary care outpatient note (provider wrote that the Veteran “c/o RT lower back/thigh pain for 1 month after shoveling the snow.”); May 2013 letter from Dr. E.F. (“[The Veteran] further stated that the lower back bothered him on and off for years but the leg pain returned recently while he was shoveling snow.”). Therefore, when rendering a medical opinion, the VA examiner should have considered whether the Veteran’s symptoms and impairment constitute a disability under Saunders. Because the March 2020 VA examiner failed to do so, the Board finds the opinion inadequate and affords it little to no probative value. Second, the Board finds highly probative the Veteran’s reports of right leg pain since his in-service injury. The Veteran is competent to report such observable symptoms, and he consistently reported in lay statements submitted in this appeal and in statements made to medical professionals that the pain in his right leg onset after his in-service back injury and has continued ever since. See May 2013 letter from Dr. E.F.; April 2018 Board hearing transcript; November 2019 letter from Dr. E.F.; February 2020 letter from Dr. A.K. Statements, such as these, made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the Veteran has a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Third, the Board finds it significant that Dr. E.F. noted that the Veteran’s treating diagnosis was “lumbar radiculitis involving the right leg (724.4), with contributory lumbar disc degeneration (722.52) and lumbar intersegmental dysfunction.” (emphasis added). See May 2012, May 2013, and November 2019 letters from Dr. E.F. This wording suggests that the Veteran’s “radiculitis involving the right leg” is causally related to his lumbar spine disability. The Board acknowledges the March 2020 VA examiner’s opinion that the Veteran’s private treatment provider’s diagnosis of the Veteran’s right lower extremity symptoms “is not supported by their clinical examination findings or by the imaging studies of the lumbar spine” and that the Veteran’s “providers loosely refer to his symptoms as radiculopathy.” However, the record reflects that Dr. E.F. based his diagnosis on the Veteran’s competent reports of radiating right leg pain and an X-ray report which revealed lumbar disc degeneration, and T.S., the Veteran’s private physical therapist from Ivy Rehab, indicated that the Veteran had positive “Slump” and “Sciatic Nerve Tension” tests in his right leg, which, according to information available to the public on the internet, are designed to evaluate for lumbar nerve root impingement or irritation. See August 2006 private treatment records. Accordingly, after resolution of all reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for a right lower extremity disability based on secondary causation by the Veteran’s service-connected lumbar spine disability have been met. The appeal is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.