Citation Nr: 21004703 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 13-08 191 DATE: January 27, 2021 ISSUE Entitlement to service connection for a lower back disability, to include degenerative joint disease. ORDER Entitlement to service connection for a lower back disability, to include degenerative joint disease is granted. FINDING OF FACT Resolving all doubt in his favor, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's lower back disability, to include degenerative joint disease, is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lower back disability, to include degenerative joint disease have been met. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on Active Duty in the United States Army from August 1980 to August 1983. The Veteran also served with the South Carolina Army National Guard from August 1984 to April 1996. This matter comes before the Board of Veterans’ Appeals (Board) on an appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board remanded this issue in February 2017, June 2018 and September 2020 for further development. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board notes that new evidence was added to the claims file in November 2020 and December 2020. It does not appear from the record that the appellant submitted a waiver of review of that evidence by the Agency of Original Jurisdiction (AOJ). However, as discussed below, the evidence of record is sufficient to grant the claim for entitlement to service connection for a lower back disability. Therefore, a remand for AOJ consideration of the new evidence as to that issue is not warranted, and the appellant would not be prejudiced by proceeding with a final decision on this issue at this time. This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Unfortunately, the Veteran's active service treatment records from August 1980 to August 1983 cannot be located. A formal finding was issued in October 2006 indicating that the records were unavailable and any further attempt to locate the records would be futile. VA's duty to assist under the VCAA includes helping the claimant obtain service treatment records (STRs) and other pertinent records, as well as performing an examination or obtaining a medical opinion when one is necessary to make a decision on the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In cases such as this in which STRs are incomplete or unavailable, the Board's obligation to explain its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992) However, case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when a Veteran's medical records have been destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, the case law does not lower the legal standard for proving a claim, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). Here, the Veteran's STRs are not available because they were lost. Because of missing records, the analysis below has been undertaken with this heightened duty in mind. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). Service Connection Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 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). Certain diseases shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service, if they manifest within a specified time period following service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a chronic disease under 38 C.F.R. § 3.309 (a). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker, 708 F.3d at 1339 ), or in the presumptive period so as 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). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Full-Time, ACDUTRA, INACDUTRA, and Service Connection Legal Considerations The Veteran served as a member of the Army from August 1980 to August 1983. He had additional service in the South Carolina Army National Guard which is characterized as full-time duty, active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) from August 1984 to April 1996. See 38 U.S.C. §§ 102(22), (23); 38 C.F.R. § 3.6(c). The Veteran’s military occupation specialty (MOS) while in the National Guard was Infantryman. The record reflects that the Veteran was ordered to a period of ACDUTRA from April 1, 1989 to April 15, 1989. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA), or from injury incurred or aggravated while performing inactive duty for training (INACDUTRA). 38 U.S.C. §§ 101 (24), 106, 1131. ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106 (d); 38 C.F.R. § 3.6 (e). When a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the Veteran became disabled as a result of a disease or injury (ACDUTRA), or injury (INACDUTRA) incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA. See 38 U.S.C. §§ 101 (2), (22), (24); 38 C.F.R. § 3.6 (a). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the Veteran would not qualify as a "Veteran" for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101 (2), (24); see Acciola v. Peake, 22 Vet. App. 320, 324 (2008). The presumption of soundness does not apply when the claimant has not been examined contemporaneous to entering a period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Furthermore, the presumption pertaining to chronic diseases under 38 U.S.C. § 1112 and the presumption of aggravation under 38 U.S.C. § 1153 do not apply to ACDUTRA or INACDUTRA service. Id.; see also Acciola v. Peake, 22 Vet. App. 320 (2008). 1. Entitlement to service connection for a lower back disability, to include degenerative joint disease. The Veteran contends that he is entitled to service connection for a lower back disability. He claims that he injured his back while lifting heavy equipment while in active service. Additionally, he asserts that his back disability has continuously caused limitations for him since the time of the injury. Regarding the first element of service connection, which is a current disability, the Board notes that an October 2012 VA Radiology Report showed the Veteran to have degenerative joint disease with mild stenosis. The Veteran was afforded a VA examination in March 2017 and at the time the examiner diagnosed degenerative arthritis and degenerative arthrosis of the lumbar spine. A VA treatment note from October 2019 indicated that MRI imaging showed osteoarthritis of the lumbar spine with little narrowing between L5-S1 with no stenosis causing impairment. As the Veteran has been shown to have a current disability, the Veteran has met the first criteria for entitlement to service connection. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). As to the second element of service connection, which is an in-service event, in-service incurrence or aggravation of a disease or injury, the Board finds the Veteran to be a reliable historian of his experiences in service. See Jandreau, 492 F.3d at 1377. The Veteran asserts that he injured his back while handling 55- gallon drums. The Veteran's DD-214 confirms that for two and a half years his MOS was a smoke and flame specialist. The Board notes that in November 2019 the Veteran submitted web articles describing the job duties of a smoke and flame specialist which includes the operation of smoke generator equipment. Thus, the Board finds the Veteran’s report of these in-service incidents to be credible and thus the Veteran has also met the second criteria for entitlement to service connection. Id. Turning to the final criteria, there must be a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a). First the Board considers that the Veteran has asserted several times over the course of the period on appeal that he has had ongoing back pain since his discharge from active duty service in August 1983. In a May 2006 VA treatment note the Veteran stated that he has been having low back pain on and off for years. A March 2012 treatment note reflects that the Veteran stated that he has had back pain since 1983. The Veteran’s social security records received in October 2018 contain a May 2018 orthopedic examination in which the Veteran stated that the onset of his back pain was more than 20 years prior. Additionally, the record contains multiple buddy statements to support the Veteran’s assertions of ongoing back issues. His sister provided a statement in August 2012 where she wrote that the Veteran has experienced back problems since he left the Army. She went on to state that the Veteran’s back problems effect his ability to lift several objects and has impacted his ability to work. The Veteran’s mother also provided a lay statement in August 2012 in which she stated that the Veteran has experienced pain in his back since his discharge. In August 2020 I.J. submitted a statement on the Veteran’s behalf. She stated that she has known the Veteran since his discharge from active service and he has had back problems since. She stated that she washes the Veteran’s clothes, cooks, and takes him to different places because his health has deteriorated due to his chronic back pain. Turning to the medical records, as previously stated, the Veteran’s military service treatment records from his period of active duty service from August 1989 to August 1983 are unavailable. The Board notes that the Veteran’s National Guard records include a Statement of Medical Examination and Duty Status dated April 13, 1989, which revealed that the Veteran was on a period of ACDUTRA on April 4, 1989 and while lowering a machine gun down he reported feeling a sharp pain in his back. The Veteran did not report the incident at that time because he was not worried about it, but he did report it to his squad leader the next day. At that time the Veteran saw a medic and the record reflects that he was examined, given medication and given 48 hours of light duty. On an August 1993 National Guard Report of Medical History the Veteran denied any history of recurrent back pain, and clinical evaluation of the spine was noted to be normal with no defects or diagnoses involving the low back indicated. In December 2013 the Veteran was afforded a VA examination. At that time the examiner noted that she reviewed the Veteran’s claim file. The Veteran reported that he had suffered from back pain since his time in service. The Veteran reported that while in service he operated a smoke generator and had to lift 55-gallon barrels using his back and legs. The December 2013 VA examiner only diagnosed the Veteran with lumbago and confined her opinion to that condition. In a February 2017 remand, however, the Board noted that there were deficiencies in the examiner’s opinion including the fact that an October 2012 VA Radiology Report showed the Veteran to have degenerative joint disease with mild stenosis. Also, in rendering her negative nexus opinion the examiner improperly relied on the Veteran’s missing service treatment records as a bases for her conclusion. As such, the Board determined that the examination was inadequate for adjudication purposes and that further medical development was required. The matter was remanded with instructions that, amongst other directives, the RO obtain an addendum medical opinion. In March 2017, a Medical Opinion Disability Benefits Questionnaire (DBQ) and addendum opinion was completed. A diagnosis of degenerative arthritis and degenerative arthrosis of the lumbar spine was noted. The examiner opined that the Veteran’s back condition was less likely than not related to is active duty service. In providing a rationale the examiner stated that while in active duty service the Veteran’s back condition was “nonspecific, self limiting and resolved after treatment with no appreciable residuals nor finding that would indicate a future chronic condition”. Following the issuance of the March 2017 DBQ and addendum opinion, the Veteran submitted to VA limited service personnel and treatment records from his service with the South Carolina Army National Guard which reflected the previously mentioned April 1989 back injury. As the December 2013 and March 2017 VA examiner’s did not have these records available for review when they rendered their opinions, the Board remanded the issue in June 2018 with instructions that the AOJ obtain the missing records and obtain an addendum opinion based on any evidence revealed of chronic low back pain or disability. In October 2020 another DBQ and addendum opinion was completed. At that time the examiner stated that she reviewed the Veteran’s claim file. At the time the examiner opined that the Veteran’s condition was less likely than not incurred in or caused by the claimed in service event. The examiner stated that the available records do not indicate low back pain between 1980 and 1983. The examiner took note of the low back pain documented in 1989 but stated that this incident was inconsistent with a chronic condition. The examiner further opined that the Veteran’s low back disability was related to the aging process. In November 2020 VA received a medical opinion from Dr. S.C., who is the Veteran’s ongoing treating VA physician. In an unsigned statement, Dr. S.C. reported that the Veteran was under her care and that records reflect that the Veteran had chronic pain in his lower back which started in service and had worsened over the years. She referenced the October 2019 MRI imaging results which showed the Veteran to have osteoarthritis changes in his back. Dr. S.C. opined that after reviewing the Veteran’s medical records that it was more likely than not that the Veteran’s job duties in the military contributed to or probably exacerbated his current osteoarthritis pain. In November 2020 Dr. S.C provided a second signed opinion, again opining in favor of service connection for the Veteran’s low back disability, on the same basis as the previous opinion. A December 2020 VA treatment note reflects another medical opinion provided by Dr. S.C. At the time the examiner stated that she has personally reviewed the Veteran’s medical history and noted the circumstances and events of his time in service. The physician explained that as a Smoke and Flame specialist the Veteran was responsible for adjusting smoke generators and loading flame throwers on vehicle weapons. He was also responsible for moving firing controls and firing control instruments. Dr. S.C stated that the Veteran self-reported that in his MOS he was responsible for handling 55-gallon drums. While handling the drums the Veteran dealt with heavy lifting every day and “engaged in body mechanics that included pulling, pushing, or combinations of pulling and pushing, the drag/pull method and the push/pull method.” The examiner stated that “[i]t has been noted and well documented that four serious injuries can occur when handling 55-gallon drums. This include fractures, lacerations, hernias, and back strains.” The examiner went on to state that the Veteran denied a diagnosis of osteoarthritis and lumbar strain upon entry to service and self-treated the condition in the first years. As the Veteran started to experience more frequent debilitating lumbar pain he sought further evaluation. Dr. S.C. stated that, after a review of the pertinent records, in her professional opinion it was more than likely that the Veteran’s osteoarthritis and lumbar strain had a direct relationship to the Veteran’s military service and was unlikely to be fully rehabilitated at that time. In consideration of the above the Board the VA examiners who rendered the March 2017 and October 2017 opinions, as well as the Veteran’s treating VA physician, Dr. S.C. were both competent to opine as to the etiology of the Veteran’s lower back disability. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159 (a)(1). The Board notes that the examiners considered the Veteran's contentions, the claims file, and clinical medical evidence before providing an opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). Based on the foregoing, the Board finds that the evidence for and against the claim are in relative equipoise. On the one hand, the VA examiners have found that the Veteran's lower back disability is not related to service. The October 2020 VA examiner has related the Veteran's lower back disability to the aging process and opined that it was less likely than not related to service. On the other hand, Dr. S.C. has opined that upon review of the records and her ongoing treatment of the Veteran that the Veteran's lower back disability is directly related to his duties as a smoke and flame specialist during active service. Both the VA opinions and Dr. S.C.’s opinion provide a plausible explanation for the Veteran's lower back disability. Accordingly, after careful review of the record, including the medical evidence and the lay statements of record, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the evidence is in relative equipoise regarding the question of whether the Veteran’s lower back disability is related to his period of active duty service. As such, service connection for the Veteran’s lower back disability, to include degenerative joint disease, is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Nettey, 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.