Citation Nr: 21061705 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-07 511 DATE: October 5, 2021 ORDER Entitlement to service connection for a back disability, currently diagnosed as spinal stenosis, status-post bilateral L4-5 hemilaminotomy, partial medial facetectomy and discectomy, is granted. Entitlement to service connection for a left hip disability is granted. FINDINGS OF FACT 1. The Veteran's back disability, currently diagnosed as spinal stenosis, status-post bilateral L4-5 hemilaminotomy, partial medial facetectomy and discectomy, is due to an in-service injury. 2. Resolving reasonable doubt in the Veteran's favor, the Veteran is shown to have a left hip disability manifested by pain and functional impairment that is due to an in-service injury. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability, currently diagnosed as spinal stenosis, status-post bilateral L4-5 hemilaminotomy, partial medial facetectomy and discectomy, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a left hip disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 2009 to February 2009, in the Army National Guard from September 2011 to August 2016, and in the Army Reserves from September 2016 to September 2017. The matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in December 2020. The hearing transcript is of record. The Board remanded the claim in April 2021 for further development by the RO. The case has been returned to the Board for further appellate action. The RO granted service connection for a neck disability, to include radiculopathy of the bilateral upper extremities, in an August 2021 rating decision. As this is a full grant of this issue, it is no longer in appellate status. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for a back disability The Board finds that the Veteran has a back disability, currently diagnosed as spinal stenosis, status-post bilateral L4-5 hemilaminotomy, partial medial facetectomy and discectomy, that is related to an in-service injury, thus warranting an award of service connection. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). The record in this case is clear as to whether the Veteran has a back disability. The August 2017 VA examination indicates a diagnosis of spinal stenosis. An additional diagnosis of status-post bilateral L4-5 hemilaminotomy, partial medial facetectomy and discectomy is noted as well. See August 2017 VA examination. Thus, the first element of service connection, the existence of a current disability, is satisfied. Concerning the in-service event, illness, or injury, the record shows that on August 19, 2016, the Veteran was involved in a motor vehicle accident, wherein a vehicle collided with the Veteran's vehicle and the Veteran's vehicle collided with a third vehicle. A sworn statement by the Veteran dated August 20, 2016, indicates that he was struck when traveling at approximately 45 miles per hour (mph). See December 2016 correspondences, August 2017 correspondence, August 2021 rating decision. The record also shows that the Veteran served in the Army National Guard through August 31, 2016. See military personnel record; VA Form DD 215. An August 2021 deferred rating decision provides that the Veteran's service in the Army National Guard on August 19, 2016, is considered active service. See also August 2021 rating decision. The Veteran competently and credibly testified that following the accident, he experienced significant back and left hip pain, and continues to experience symptoms to include flare-ups. See December 2020 Board hearing; see also May 2021 Veteran' lay statement. The lay evidence is further corroborated by private medical treatment records dated 2016 to 2017 noting the presence of back and left hip pain following the accident, as well as medical records reflecting the present-day symptoms. The Board finds that the first and second elements of the service connection analysis are satisfied. Thus, the remaining question before the Board is whether there is a nexus with service. When the evidence of record contains conflicting medical opinions, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The Board may favor the opinion of one competent medical expert over another if his or her statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Having considered the evidence of record, and after affording the Veteran the benefit of the doubt, the Board finds that it is at least as likely as not that the Veteran's current back disability was incurred in service. The August 2017 and July 2021 VA examiners' opinions are opposed to this conclusion, but the Board finds that the contrary opinion dated December 2017 by R.O., a certified physician's assistant at the private orthopedic practice where the Veteran reported receiving treatment from 2016 to the present, deserves at least equal probative value. The private medical opinion offered an adequate statement of reasons and bases for its conclusions. Specifically, R.O. stated that the medical records reflected the Veteran's reports that his symptoms began in August 2016 following the accident, that R.O. treated him in December 2016 for such symptoms, and that his symptoms fluctuated and worsened until surgery was performed in July 2017. Given the onset of the Veteran's symptoms, R.O stated that it is reasonable to conclude that they are a result of the accident. The August 2017 VA medical opinion is inadequate because it does not address the favorable medical evidence of record; the examiner stated that the records of care following the accident were unavailable for review. Following the April 2021 Board remand, additional records were added to the claims file and additional medical opinions were obtained. The July 2021 medical opinion is inadequate because it does not address the favorable medical evidence of record, specifically, it does not address the December 2017 private medical opinion or the private medical treatment records indicating that the Veteran experienced back pain following the accident and in the months leading up to his 2017 surgery. The medical opinion also fails to address the Veteran's lay statements regarding his symptoms following the accident and in the months preceding surgery. See December 2020 Board hearing; May 2021 Veteran' lay statement. Thus, the Board finds that none of the VA medical opinions of record are adequate and consequently affords them little probative weight. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In conclusion, the evidence is at least in equipoise as to whether the Veteran's back disability had its onset during active service. Accordingly, the Board must resolve reasonable doubt in the Veteran's favor and finds that service connection for a back disability, currently diagnosed as spinal stenosis, status-post bilateral L4-5 hemilaminotomy, partial medial facetectomy and discectomy, is warranted. 38 U.S.C. § 5107(b); 39 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a left hip disability The Board finds that the Veteran has a left hip disability that is related to an in-service injury, thus warranting an award of service connection. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). Here, the record shows that the Veteran reported both pain and significant functional impairment of the left hip during the December 2020 Board hearing. He testified that his hip pain is such that he must alternate between sitting and standing. The left hip condition and back condition each aggravates the other one and the symptoms are sometimes indistinguishable. Moreover, the Veteran stated that as part of his job duties, he is delegated non-physical work when he is in a period of extended flare-up. See December 2020 Board hearing. The Veteran underwent a VA examination in August 2017 showing that his left hip manifests both pain and functional impairment. The August 2017 VA examination indicates that the Veteran reported hip pressure, tightness and weakness as well as limited range of motion. Initial range of motion testing indicated a limited range of motion to include limited flexion, extension, abduction, adduction, and external and internal rotation. The examiner also noted the Veteran experienced functional loss due pain, fatigue and lack of endurance upon repeated use over time and during flare-ups but was unable to describe such loss in terms of range of motion values. See August 2017 VA examination. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has a left hip disability. Though the August 2017 VA medical opinion is opposed to this conclusion, citing a lack of a clinical diagnosis, the Board finds that there is sufficient probative lay and medical evidence of record to show that the Veteran has left hip pain resulting in functional impairment causing decreased earning capacity, which constitutes a disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Here, the post-service private medical treatment records reflect continued reports of left hip pain. The Veteran has reported difficulty sitting as a result of his hip and back conditions. Moreover, the hip and back conditions have impacted his physical activity levels at his employment. See August 2017 VA examination; December 2020 Board hearing. Thus, the first element of service connection, the existence of a current disability, is satisfied. Concerning the in-service element, as set out in the discussion above, the record shows that the Veteran incurred injuries in a motor vehicle accident on August 19, 2016, which was determined to be active service. See August 2021 deferred rating decision and rating decision. The Veteran competently and credibly testified that following the accident, he experienced significant back and left hip pain. See December 2020 Board hearing; see also May 2021 Veteran' lay statement. The lay evidence is further corroborated by private medical treatment records dated 2016 to 2017 noting the presence of back and left hip pain following the accident. He testified that he continues to experience symptoms to the present day, which includes flare-ups of the back and hip; this is also corroborated by private medical treatment records. Based on the first two elements of service connection being satisfied, VA twice throughout the pendency of this claim sought a competent medical opinion regarding whether there is a causal relationship between the current left hip disability and the in-service injury. The Board finds that none of the opinions of record adequately address the Veteran's lay statements or the favorable medical evidence of record. The August 2017 medical opinion is inadequate because the examiner relied on the lack of clinical diagnosis. The July 2021 medical opinion is inadequate as it did not address the favorable medical and lay evidence of record. Specifically, it did not address the multiple post-service private medical treatment records noting back and left hip pain, or the Veteran's testimony at the December 2020 Board hearing or the May 2021 lay statement, wherein the Veteran details his back and hip symptoms following the accident and in the months preceding surgery. The Board also finds that the favorable private medical opinion dated December 2017 regarding the Veteran's back lends support to a finding in favor of service connection for the left hip disability. The medical opinion notes the Veteran's radiating symptoms. The Veteran has contended that his left hip disability is an extension of his back disability, in that it emanates or radiates from the back. See October 2018 memorandum (requesting that the claim for a back disability be broadened to include neurological impairment of the bilateral lower extremities). The Veteran has also testified that the hip and back conditions mutually aggravate each other and can be indistinguishable. See December 2020 Board hearing. Private medical treatment records corroborate the assertion that these symptoms are experienced contemporaneously. See private medical treatment records dated October 2016 and July 2017. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In conclusion, the evidence is at least in equipoise as to whether the Veteran's left hip disability had its onset during active service. Accordingly, the Board must resolve reasonable doubt in the Veteran's favor and finds that service connection for a left hip disability is warranted. 38 U.S.C. § 5107(b); 39 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.