Citation Nr: 21004747 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 20-20 465 DATE: January 28, 2021 REMANDED Entitlement to service connection for lumbosacral spine arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1967 to April 1967. Service Connection – Lumbosacral Spine Arthritis Upon review, the Board finds that remand is required for a new VA opinion. Evidence The Veteran filed a claim in November 2017 (on VA Form 21-526EZ) for entitlement to service connection for “spine – arthritis.” In a separate statement accompanying the claim, the Veteran reported that a July 2017 spinal x-ray showed “‘[m]ild multilevel degenerative changes’” and provided a statement from a private chiropractor (D.F.) that stated that the Veteran was seen in August 2017 “for the treatment to relieve symptoms related to chronic low back pain complicated by degenerative disc and joint disease of lumbar spine.” The Veteran’s service treatment records (STRs) included an October 1966 Report of Medical History form, where the Veteran reported ever having or having now recurrent back pain, reported having ever worn a brace or back support (it was noted elsewhere on the form “wore back brace – not now”) and reported having consulted or been treated by “physicians, healers, or other practitioners” within the past 5 years for lower back pain. Under a section of the form completed by a physician, noted was “low back pain – no” followed by an illegible word or words. On the accompanying Report of Medical Examination form, upon clinical evaluation “spine, other musculoskeletal” was noted as normal and it was noted “back entirely normal to [physical examination].” No defects or diagnoses were noted and the Veteran was noted to be qualified for induction. Under the physical profile section, all 1s were noted for the PULHES rating system. See Horn v. Shinseki, 25 Vet. App. 231, 233 n.1 (2012) (“PULHES is a rating system widely employed by armed services physicians in examination reports for induction and separation. The ‘P’ stands for ‘physical capacity or stamina’; the ‘U’ for ‘upper extremities’; the ‘L’ for ‘lower extremities’; the ‘H’ for ‘hearing and ear’; the ‘E’ for ‘eyes’; and the ‘S’ for ‘psychiatric.’ See McIntosh v. Brown, 4 Vet. App. 553, 555 (1993). A rating of ‘1’ in any of the six categories, the highest rating, means that the inductee’s condition in that category should not result in any limitations in military assignments Id. Ratings from ‘2’ to ‘4’ indicate the existence of physical conditions that will result in progressively more severe restrictions on the assignments that the inductee may be given”). An additional note from January 31, 1967 (the first day of the Veteran’s active service) noted that no additional defects were discovered and that the Veteran was fit for military service. STRs variously reflected treatment and issues related to the Veteran’s back. See February 21, 1967 STR (referencing the back and noting heat treatment); March 1, 1967 STRs (one STR referenced a sore back and referred the Veteran to the hospital; a second STR referenced ER treatment and noted low back pain); March 10, 1967 STR (referencing “same as above” with respect to the February 21, 1967 STR); March 13, 1967 STR (noting an impression of chronic back pain, that such existed prior to service and referencing lumbosacral spine x-rays (which are not contained in the STRs)). A March 15, 1967 Report of Medical Examination form noted upon clinical evaluation “spine, other musculoskeletal” as abnormal and noted chronic back pain. Under the physical profile section, 4s were noted for the “P” and “L” items. Under the defects or diagnoses section, chronic back pain was noted. The Veteran was noted to be not qualified for further military service due to chronic back pain. On the accompanying Report of Medical History form, the Veteran stated “I have had chronic lower back pain since the age of 16 until the present.” The Veteran also reported having worn a brace or back support and under a section of the form completed by a physician it was noted “Wore a Brace – In past, no complications and no sequelae.” A March 31, 1967 Medical Board Proceedings form noted that the Veteran was medically unfit for further military service due to hyperhidrosis involving the hands and feet. This form did not reference the Veteran’s back. An April 12, 1967 STR (the last day of the Veteran’s active service) referenced the March 15, 1967 separation examination and the Veteran reported that since this examination “[t]here has been no change in my medical condition.” Turning to post-service evidence, the Veteran variously referenced that he went on 16 mile marches during boot camp. See October 2017 VA Form 21-0781a (“In boot camp we were required to go on 16 mile night marches”); November 2017 Veteran Statement (“In boot camp…we were required to go on 16 mile night marches which I accomplished several times”); March 2018 VA Form 21-0781a. In a November 2020 statement, the Veteran stated that “I disclosed my back pain when I was drafted in 1967…I was not experiencing major back pain at that time.” He also stated that “[w]hile in the Army, I experi[]enced major feet (bilateral) lesions) – blisters and infection from 16-mile night marches. The feet problems aggravated my back pain.” He referenced getting treatment for his feet and back and that “I recovered and went back to duty but my feet and back problems recurred.” He further referenced his medical board review and stated that he was “discharged…from the service due to hyperhidrosis which was the underlying cause of my []feet and back problems.” He also referenced that “I have received medical treatment post discharge” at two chiropractic clinics from 1978 to 2013 and at Kaiser Permanente from 2013 to the present. He additionally referenced his “back problems that were aggravated by my service.” The Veteran was afforded a VA examination in February 2018 (with Nurse Practitioner R.L.) and a Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) was completed. A diagnosis was noted of lumbosacral strain, with a date of diagnosis noted of September 2015. Under the medical history section, it was noted that “[t]he date of onset of the symptoms is Sept. 2015…The condition has been diagnosed as polymyalgia rheumatica.” An opinion was provided that “the claimed condition, which clearly and unmistakable existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.” The accompanying rationale stated that the Veteran “reports his current back condition began in 2015 and has recently been diagnosed with a rheumatological condition which would not have come from a back injury prior to service…I did not find evidence of back trauma while in basic training. Med board separation was for other conditions, not back.” In March 2019, extensive private medical records were obtained from Kaiser Permanente that dated from 2010 to 2019. These records included a September 2013 note that stated “[h]as history of back pain but usually better” and that noted an assessment of chronic low back pain. An October 2013 lumbosacral spine x-ray report noted an impression of “[m]oderate to severe spondylosis at L5-S1” and “[m]ild spondylosis at L21-3, L3-4 and L4-5.” A July 2017 note stated “having back pain on and off for long time but return in the last week” and noted an assessment of chronic low back pain. A July 2017 lumbosacral spine x-ray report noted an impression of “[m]ild multilevel degenerative changes, most prominent at the lumbosacral junction and not significantly changed since 2013.” The Veteran was afforded another VA examination in March 2020 (again with Nurse Practitioner R.L.) and a Back Conditions DBQ was completed. A diagnosis was noted of degenerative arthritis of the spine, with a date of diagnosis noted of October 2013 by the Kaiser Permanente x-ray. An opinion was provided that “the claimed condition, which clearly and unmistakable existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.” The accompanying rationale stated that the Veteran’s: medical records show he had back pain prior to service with normal spine exam, with back pain continuing during service. He reports his back became more limiting over 3 decades as a chiropractor. Kaiser records show treatment for back pain in 2013, I do not find discussions in the 1980-2013 discussing back treatment. Therefore i[t] is less likely as not his current back condition is related to military service. Opinion is unchanged from my [February 2018 opinion]. In November 2020, the Veteran’s representative, essentially, argued that the February 2018 and March 2020 VA opinions were inadequate and requested remand for an adequate VA opinion. Analysis 38 U.S.C. § 1111 states that “every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination.” See also 38 C.F.R. § 3.304(b). This is generally referenced as the presumption of soundness. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s claimed lumbosacral spine disability preexisted his military service. As referenced, while the Veteran reported having recurrent back pain on the October 1966 Report of Medical History form, the October 1966 entrance examination report is absent of any notations of defects, infirmities, or disorders related to the Veteran’s spine and, in fact, variously indicated that the spine was normal at that time. The Veteran’s report of a history of back pain is not a noting of a disability on the entrance examination for presumption of soundness purposes. See 38 C.F.R. § 3.304(b) (“Only such conditions as are recorded in examination reports are to be considered as noted”), 38 C.F.R. § 3.304(b)(1) (“History of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions”). Additionally, based on the various STRs reflecting treatment and issues related to the Veteran’s back discussed above, the evidence is at least in equipoise as to whether a lumbosacral spine disability manifested during service. Therefore, with respect to the Veteran’s lumbosacral spine, the presumption of soundness attaches. As the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). As noted, the Veteran filed a claim in November 2017 for “spine – arthritis” and evidence of record, to include the March 2020 VA Back Conditions DBQ, noted the presence of arthritis of the spine. As such, lumbosacral spine arthritis is the relevant disability in this case. The Board finds that the current evidence did not show that the Veteran’s lumbosacral spine arthritis clearly and unmistakably preexisted service. As referenced, STRs referenced a history of preexisting back pain, but no mention or notation was included in the STRs as to lumbosacral spine arthritis. Also, while the February 2018 and March 2020 VA opinions included language that “the claimed condition, which clearly and unmistakable existed prior to service,” the rationales did not explain how there was clear and unmistakable evidence that the claimed and relevant disability of lumbosacral spine arthritis, as opposed to just back pain generally, preexisted service. Lacking a relevant rationale, the Board accordingly affords these opinions no probative value as to the issue of whether the Veteran’s lumbosacral spine arthritis preexisted service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“It is the factually accurate, fully articulated, sound reasoning for the conclusion…that contributes probative value to a medical opinion”). Overall, the evidence does not contain clear and unmistakable evidence that the relevant disability (claimed and shown during the appeal period) of lumbosacral spine arthritis preexisted the Veteran’s active service. Therefore, the presumption of soundness has not been rebutted in this case. The United States Court of Appeals for Veterans Claims (Court) stated in Horn v. Shinseki, 25 Vet. App. 231, 236 (2012) that “[w]hen VA fails to carry its burden as to either preexistence or lack of aggravation, ‘whether and to what extent the veteran [is] entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service’” and that “[i]t does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The [Veteran] must still demonstrate a current disability and a nexus between his current disability and the injury or disease in service.” As to the issue of nexus between the Veteran’s current lumbosacral spine arthritis and the Veteran’s active service, the Boar finds that remand is required for a new opinion because the previous opinions were inadequate as to this issue. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (“Once [VA] undertakes the effort to provide an examination when developing a service-connection claim…[VA] must provide an adequate one”). In this regard, as outlined, both the February 2018 and March 2020 VA opinions were phrased as to address issues related to the presumption of soundness, which as explained above, the Board has found not to be the relevant inquiry in this case. Neither opinion clearly addressed the relevant issue of direct service connection and whether a nexus exists between the Veteran’s current lumbosacral spine arthritis and the Veteran’s active service. The Board notes that the March 2020 VA opinion included as part of the rationale language that “i[t] is less likely as not his current back condition is related to military service,” which is essentially a negative direct service connection opinion. The Board, however, finds this opinion (to the extent a portion of the rationale can be taken as an opinion) to be inadequate. The rationale provided for this opinion was that the Veteran “reports his back became more limiting over 3 decades as a chiropractor. Kaiser records show treatment for back pain in 2013, I do not find discussions in the 1980-2013 discussing back treatment.” As such, the negative opinion was apparently based, at least in part, on the lack of medical records from 1980-2013 related to back treatment. As noted, in a subsequent September 2020 statement the Veteran clearly reported “hav[ing] received medical treatment post discharge” at two chiropractic clinics from 1978 to 2013. The Board notes that the lack of contemporaneous medical records, by itself, is not sufficient to find the Veteran’s lay report of treatment not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (“While the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran’s lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible”). It does not appear that the March 2020 VA opinion was based on an accurate factual premise as to the Veteran’s post-service medical treatment. See generally Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (“An opinion based upon an inaccurate factual premise has no probative value”). Accordingly, the Board finds the March 2020 VA opinion inadequate and that remand is therefore required to obtain an adequate VA opinion, as outlined further in the remand directives below. While on remand, outstanding VA treatment records must be obtained. In this regard, the most recent VA treatment records of record are from September 2020 and the Veteran stated in a November 2020 statement that “I currently receive treatments through the VA system.” Also, as discussed, of record is an August 2017 statement from a private chiropractor (D.F.), but no additional records are of record from this provider. In addition, as noted, the Veteran referenced in the September 2020 statement receiving medical treatment at two chiropractic clinics from 1978 to 2013. As such, while on remand, the Veteran must be given the opportunity to either provide any outstanding relevant private treatment records, to include any chiropractor records from 1978 to the present, or complete a release for such records; if any releases are returned, VA must attempt to obtain the identified records. See 38 C.F.R. § 3.159(e)(2) (“If VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records”). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records from September 2020. 2. Contact the Veteran and request that he either provides any outstanding relevant private treatment records, to include any chiropractor records from 1978 to the present, or completes a release for such records; if any releases are returned, attempt to obtain the identified records. 3. Obtain an opinion from a medical professional that addresses the Veteran’s lumbosacral spine arthritis claim. If the medical professional determines that additional examination of the Veteran is necessary to provide an adequate opinion, such examination must be scheduled. The medical professional must provide an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that lumbosacral spine arthritis is related to an in-service injury, event, or disease. The medical professional’s attention is invited to: (a.) STRs that variously reflected treatment and issues related to the Veteran’s back. See February 21, 1967 STR (referencing the back and noting heat treatment); March 1, 1967 STRs (one STR referenced a sore back and referred the Veteran to the hospital; a second STR referenced ER treatment and noted low back pain); March 10, 1967 STR (referencing “same as above” with respect to the February 21, 1967 STR); March 13, 1967 STR (noting an impression of chronic back pain, that such existed prior to service and referencing lumbosacral spine x-rays (which are not contained in the STRs)). (b.) A March 15, 1967 Report of Medical Examination form, which noted upon clinical evaluation “spine, other musculoskeletal” as abnormal and noted chronic back pain. Under the physical profile section, 4s were noted for the “P” and “L” items. Under the defects or diagnoses section, chronic back pain was noted. The Veteran was noted to be not qualified for further military service due to chronic back pain. (c.) The Veteran’s report that he went on 16 mile marches during boot camp. See October 2017 VA Form 21-0781a (“In boot camp we were required to go on 16 mile night marches”); November 2017 Veteran Statement (“In boot camp…we were required to go on 16 mile night marches which I accomplished several times”); March 2018 VA Form 21-0781a. (d.) The Veteran’s November 2020 statement, where he stated that “[w]hile in the Army, I experi[]enced major feet (bilateral) lesions) – blisters and infection from 16-mile night marches. The feet problems aggravated my back pain,” referenced getting treatment for his feet and back and stated that “I recovered and went back to duty but my feet and back problems recurred” and further referenced his medical board review and stated that he was “discharged…from the service due to hyperhidrosis which was the underlying cause of my []feet and back problems.” (e.) The Veteran’s report of “receiv[ing] medical treatment post discharge” at two chiropractic clinics from 1978 to 2013 and at Kaiser Permanente from 2013 to the present. (f.) Private Kaiser Permanente records, specifically September 2013 and July 2017 records that included assessments of chronic low back pain and an October 2013 lumbosacral spine x-ray report that noted “[m]oderate to severe spondylosis at L5-S1” and “[m]ild spondylosis at L21-3, L3-4 and L4-5” and a July 2017 lumbosacral spine x-ray report that noted “[m]ild multilevel degenerative changes, most prominent at the lumbosacral junction and not significantly changed since 2013.” For all opinions provided, the medical professional must include the underlying reasons for any conclusions reached. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.