Citation Nr: 21003544 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-08 797 DATE: January 21, 2021 ORDER 1. Entitlement to service connection for lumbar spondylosis is granted. REMANDED 2. Entitlement to service connection for a cervical spine disability is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, lumbar spondylosis had its onset during service. CONCLUSION OF LAW The criteria for entitlement to service connection for lumbar spondylosis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps from October 2001 to December 2005. The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge in October 2020. A transcript of the hearing has been associated with the claims file. The agency of original jurisdiction had characterized the issues as service connection for “an upper back condition” and lumbar spondylosis. The Board has changed the characterization of the upper back condition to cervical spine disability for clarification, as the Veteran made clear at the October 2020 hearing the claims for service connection involved the lumbar spine and the cervical spine. 1. Entitlement to service connection for a lumbar spine disability, diagnosed as lumbar spondylosis The Veteran believes his lumbar spine disability had its onset during service. The Veteran stated that he developed the disability from the precarious and extremely demanding physical conditions to which the Infantry Marines were exposed to during service. The Veteran testified that he had to carry about 100 pounds of equipment while deployed three separate times. He said that he had to run and crawl while carrying the equipment. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) 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. Service connection may 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). The Board has carefully reviewed the evidence of record and finds that the evidence supports the grant of service connection for lumbar spondylosis. The reasons follow. As to evidence of a current disability, a March 2013 VA examination report shows that the Veteran was diagnosed with lumbar spondylosis. Therefore, the facts establish that the first element of a service-connection claim is met. As to evidence of a disease or injury in service, the service treatment records show that the Veteran complained of low back pain. For example, Post-Deployment Health Assessments from May 2003 and May 2004 show that the Veteran reported having back pain that developed during his deployments. An October 2005 Report of Medical History shows that the Veteran documented a positive history of recurrent back pain and numbness or tingling. An October 2005 Report of Medical Assessment shows that the Veteran indicated that compared to his last medical assessment/physical examination, his overall health was worse, and he documented lower back pain. He further documented having back pain after exercise. Thus, the facts establish that the second element of a service-connection claim is met. Furthermore, there is competent and credible evidence that the Veteran continued to experience lumbar spine pain immediately following service discharge. For example, in December 2005, which is the same month he was discharged from service, he sought treatment at VA for chronic mild lower back pain, which he stated he had been experiencing since 2003. He denied any major trauma and described his lower back bothering him two times a month with lifting and would last for one week. The Veteran continued to be seen for low back pain by both VA and private providers in 2006, 2007, 2009, 2010, and 2012. He consistently reported the onset of the low back pain as beginning in 2003 and slowly getting worse after being discharged from service. This shows classic evidence of continuity of symptomatology. The Veteran was provided a VA examination in March 2013. The examiner stated that the Veteran’s lumbar spine disability was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner stated after review of the Veteran’s claims file, the Veteran was not diagnosed nor treated for upper back pain nor spondylosis while in service. The examiner noted that after reviewing the private medical records, the Veteran’s lumbar back pain was secondary to muscle spasms in 2006 and 2009 and noted that the Veteran was discharged from service in December 2005. The Board finds the opinion of the VA examiner of no probative value, as the examiner did not acknowledge the in-service ongoing low back pain complaints. Regardless, the Board finds that it cannot disassociate the in-service low back pain complaints with the post-service low back pain complaints that were documented in the same month as the Veteran’s service discharge and continued to be documented in treatment records in the years following service discharge. In sum, the Board concludes that the approximate balance of evidence is in favor the Veteran’s claim for service connection for lumbar spondylosis. Thus, service connection is granted. REASONS FOR REMAND 2. Entitlement to service connection for a cervical spine disability is remanded. The Board finds that further development is necessary related to the Veteran’s cervical spine disability claim. At the Board hearing, the Veteran testified that he had to lay in the prone position for hours during training and operations, which lead to his neck pain/disability. The Board finds that a medical opinion is necessary to determine if the current cervical spine disability is related to the Veteran’s lay statements about being in the prone position during service. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine if any current cervical spine disability is related to service. The examiner should be provided access to the Veteran’s claims file for review. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: • The Veteran served on active duty from October 2001 to December 2005. • The Veteran’s service treatment records show that he complained of low back pain on multiple occasions. See VBMS entry type, “STR,” receipt date 05/21/2012, with “#1” in the Subject field, pages 88-90 (May 2003). 74-77 (May 2004), 55 & 56 (October 2005). • The Veteran has been awarded service connection for lumbar spondylosis. • The service treatment records do not show that the Veteran complained of cervical spine pain during service. • The Veteran has stated that he believes he developed a cervical spine disability from lying in a prone position on the ground with his neck raised while wearing a helmet which position he would be in for many hours, which put a strain on his neck. See VBMS entry with document type, “Hearing Transcript,” receipt date 10/09/2020, pages 12-13. • A November 2006 VA treatment record shows that the Veteran presented with neck pain and right arm tingling. He described the tingling in his right arm and forearm had been there for several days, which had since resolved. The examiner wrote that a needle electromyography of selected muscles in the right C5 throughout T1 myotomes were performed, and there was no abnormal spontaneous activity seen in any of these muscles, as well as motor unit action potentials with normal morphology and recruitment pattern. It was determined to be a normal study with no electrodiagnostic evidence of right cervical radiculopathy. See VBMS entry with document type, “CAPRI,” receipt date 06/18/2013, pages 73-74. • A November 2006 CT scan of the cervical spine showed, “No significant degenerative disease.” See VBMS entry with document type, “CAPRI,” receipt date 06/18/2013, on page 61. • In a May 2007 letter from Jeffrey S. Ritter, M.D. to another physician, he wrote that x-rays of the cervical spine were performed and were normal. See VBMS Entry Type, “Medical Treatment Record – Non-Government Facility,” receipt date 07/09/2012, pages 1-5. • An April 2009 private record shows that the Veteran underwent a right thoracic trigger point injection in the thoracic musculature. Dr. Andrew Sherman noted he had reviewed the thoracic MRI scan, which showed no evidence of disk herniation at any level, but “[t]here is a mention of a slight bulge at C5-6 in the cervical spine.” As to the cervical spine, Dr. Sherman wrote that the pain in the Veteran’s arm was “possibly due to cervical disk injury.” See VBMS Entry Type, “Medical Treatment Record – Non-Government Facility,” receipt date 07/09/2012, page 29. • A March 2010 private medical record shows that the Veteran was seen for low back pain and neck pain. Dr. Sherman noted that imaging studies of the thoracic spine had shown a disk osteophyte complex to the left-sided C6-C7 area. He entered an impression of “[b]ilateral C6-C7 facet spondylosis with a possible component of bilateral C5-C6 component as well.” See VBMS Entry Type, “Medical Treatment Record – Non-Government Facility,” receipt date 07/09/2012, pages 53-54. • A January 2011 private medical record shows that Dr. John Nordt diagnosed the Veteran with neck strain. See VBMS Entry Type, “Medical Treatment Record – Non-Government Facility,” receipt date 07/09/2012, page 73. • A September 2011 MRI of the cervical spine shows impressions of mild disc bulge at C6-C7 and an “otherwise normal examination. No focal disc herniation.” See VBMS Entry Type, “Medical Treatment Record – Non-Government Facility,” receipt date 07/09/2012, page 84. • The Veteran was provided a VA examination in March 2013. The examiner stated that the Veteran’s upper spine disability was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner stated after review of the Veteran’s claims file, the Veteran was not diagnosed nor treated for upper back pain nor spondylosis while in service. The examiner noted that a review of the private medical record revealed lumbar back pain, secondary to muscle spasms in 2006 and 2009. See VBMS Entry Type, “C&P Exam,” receipt date 05/14/2013, pages 1-13. • The March 2013 opinion appears to be about the Veteran’s thoracic spine and not the cervical spine, as the examiner did not enter a cervical spine diagnosis like she did a thoracic spine and lumbar spine. The current claim revolves around the Veteran’s cervical spine. • In February 2015, the Veteran submitted a private Disability Benefits Questionnaire by Ronald B. Tolchin, D.O. Dr. Tolchin noted that the Veteran had neck and back pain with occasional radicular pain. The examiner diagnosed the Veteran with mechanical back pain syndrome, lumbosacral sprain, degenerative disc disease, and radiculopathy. See VBMS Entry Type, “Disability Benefits Questionnaire,” receipt date 03/31/2015, pages 1-21. • Dr. Tolchin also provided a medical nexus statement. Dr. Tolchin opined that the Veteran’s onset of degenerative disc disease of the cervical spine, degenerative disc disease of the lumbar spine, muscle spasm of back, and myalgia were as most likely caused by, a result of, or aggravated by events in service. Dr. Tolchin stated that the Veteran had three deployments and complaints of pain began 14 days following deployment. Additionally, the Veteran had to carry over 100 pounds of weight on his back constantly and it added to the degenerative disc disease of the cervical and lumbar spine with a bulging disc at C6-7. See VBMS Entry Type, “Medical Treatment Record – Non-Government Facility,” receipt date 03/17/2015, page 1. • At the October 2020 Board hearing, the Veteran said that Dr. Tolchin mentioned being in uncomfortable positions for a long time will cause problems. He went on to explain that while on deployment during service, he threw himself to the floor in the prone position when people were shooting. He said that he was like that for hours in training and in operations. He remembered lowering his head and rubbing his neck because of the pain. See VBMS Entry Type, “Hearing Transcript,” receipt date 10/09/2020, pages 12-13. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. While the Board has provided some of the relevant facts above, the examiner is asked to review the entire record, examine the Veteran if determined necessary, and then answer the following questions: (a.) For each cervical spine disability diagnosed, the examiner is asked to address whether it is at least as likely as not (50 percent probability or more) that such disability had its onset in service or is otherwise related to service, which period was from October 2001 to December 2005. (b.) If arthritis of the cervical spine is found, but the answer to subparagraph (a.) above is “no,” then the examiner is asked to address whether it is at least as likely as not (50 percent probability or more) that arthritis of the cervical spine manifested within one year of service discharge in December 2005 (thus, in approximately December 2006). (c.) Please address the Veteran’s lay statements that during his deployments, he was in the prone position for hours in training and during operations and that this contributed to his neck pain/disability. What impact does that statement have on your opinion regarding the etiology of the cervical spine disability? Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, 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.