Citation Nr: 21062081 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-36 002A DATE: October 6, 2021 ORDER Entitlement to service connection for a low back disability, to include degenerative arthritis of the spine, is granted. Entitlement to an initial rating in excess of 10 percent for a small bowel obstruction is denied. REMANDED Entitlement to a total rating based individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran's low back disability is related to his service. 2. For the entire period on appeal, the Veteran's small bowel obstruction most nearly approximated moderate symptoms characterized by frequent episodes of bowel disturbance with abdominal distress. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative arthritis of the spine have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303. 2. For the entire period on appeal, the criteria for a rating in excess of 10 percent for small bowel obstruction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.114, DC 7399-7319 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1969 through June 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board. 1. Entitlement to service connection for a low back disability is granted. The Veteran contends that his low back disability was caused by his service. Specifically, he alleged that he was injured in combat in Vietnam when he jumped out of a helicopter with equipment on his back. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. §§ 1111, 1132. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry and the burden then falls on the government to rebut the presumption of soundness. The standard for rebutting the presumption of soundness under 38 U.S.C. § 1111 requires that VA shows by clear and unmistakable evidence that (1) the veteran's disability existed prior to service and (2) that the preexisting disability was not aggravated during service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this case, the Veteran's service treatment records include a November 1969 enlistment examination report that specifically notes a normal spine examination. His concurrent Report of Medical History indicates that he had a history of mild back pain years ago. The Board finds that this does not rise to the level of finding that a back disability was noted at entry, as a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. Therefore, the question becomes whether there is clear and unmistakable evidence that the Veteran had a preexisting disability and if so, whether there is clear and unmistakable evidence that it was not aggravated. A VA examiner opined that the Veteran's low back disability clearly and unmistakably preexisted his service. However, it is unclear on what basis this conclusion was reached. In a February 2015 Disability Benefits Questionnaire (DBQ), the Veteran explained that he had lower back pain at age 15 or 16 roughly three years prior to service entry. He received two days of treatment and his pain resolved, without further issue. The Board finds that this falls short of clear and unmistakable evidence of a preexisting disability. Therefore, the presumption of soundness attaches. Turning to the elements of service connection, the Veteran's service treatment notes are silent for treatment, complaints, or a diagnosis related to a low back disability. Following separation from active service, the Veteran submitted a statement contending that he had injured his back in August of 1970 during a combat assault where he jumped from a helicopter and injured his back. He reported that he has back pain ever since. Notably, the Veteran's DD Form 214, Report of Transfer or Discharge, confirms a military occupational specialty as a medic, and his receipt of the Combat Medical Badge. The Board finds this sufficient to trigger the provisions of 38 U.S.C. § 1154(b). Specifically, as to claims made by combat veterans, VA shall accept as sufficient proof of the in-service element of service connection satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. In this case, the Veteran's service personnel records confirm combat service as a medic. His statements are consistent with what is to be expected of the duties of a combat medic serving in Vietnam. Therefore, the in-service element is met. In January 2011, the Veteran reported injuring his back in Vietnam in 1970 when he fell out of a truck. As a field medic, he did a self-assessment and did not seek medical attention. He sustained another fall in-service but did not seek medical attention. Rather, he treated his symptoms with aspirin. The examiner opined that it was more likely than not that the Veteran's current symptoms of back pain are related to his injury in-service. September 2012 treatment notes record the Veteran's report that he had a lot of helicopter jumps in-service. He remembered one specific time where he landed and felt a sharp pain straight up his spine and since then he would have back pain off and on. In a February 2015 DBQ, a VA examiner opined that the Veteran's low back disability, which clearly and unmistakably existed prior to his service, was less likely as not aggravated beyond its natural progression by service, to include as the result of any reported combat injury. The examiner rationalized that the records do not show complaints or evaluations of back pain or symptoms related to a back condition during service. The Board finds this opinion to lack probative value, as it is based on an inaccurate premise namely that the Veteran had a preexisting disability. In April 2020, a VA examiner opined that the Veteran's low back disability, which clearly and unmistakably existed prior to service, was clearly and mistakably not aggravated beyond its natural progression by his service. The rationale, in relevant part, speaks to direct service, rather than aggravation, and included that his service treatment records are silent for complaints, diagnoses, or treatment for a back condition. There is also no radiographic imaging to ascertain the extent of the claimed back injury. Any soft tissue back injury would demonstrate significant pain and limited motion close in time to the date of the injury. Any in-service injury was acute and transitory and did not progress to chronic condition. There is a long gap between the Veteran's service and his treatment in 2015, which is 44 years post discharge. In August 2020, the VA examiner submitted an addendum opinion citing medical literature which supports that serious long-term disability from pain appears to be uncommon among parachutists despite the frequency of the spinal trauma they sustain. Based on a review of lay and medical evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's low back disability is related to his active service. There is positive evidence from the Veteran and the January 2011 VA opinion that his back disability is a result of his service. It is notable that the opinion finds that his injury in-service could ultimately result in a low back disability years after service. There is also negative evidence in the April 2020 VA opinion that finds his back disability is not the result of his service. Both opinions are based on accurate facts and provide the underlying reason for the conclusion reached. As such, the Board finds that the evidence is in relative equipoise as to whether the Veteran's low back disability is related to his active service. Therefore, resolving reasonable doubt in favor of the Veteran, service connection for low back disability is warranted. Entitlement to an initial rating in excess of 10 percent for a small bowel obstruction is denied. The Veteran seeks a higher rating for his service-connected small bowel obstruction, which is currently rated as 10 percent disabling under DC 7399-7319. This disability is rated by analogy under 38 C.F.R. § 4.114, DCs 7399-7319. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. When an unlisted condition is encountered, as with small bowel obstruction, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. According to the policy in the Rating Schedule, when a disability is not specifically listed, the Diagnostic Code will be "built up," meaning that the first 2 digits will be selected from that part of the schedule most closely identifying the part of the body involved, and the last 2 digits will be "99." 38 C.F.R. § 4.27. For example, DC 7399 is used to identify unlisted disabilities of the digestive system. Under DC 7319, a 10 percent rating is warranted for moderate disability with frequent episodes of bowel disturbance with abdominal distress. A 30 percent rating is warranted for severe disability, with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. In March 2014, the Veteran submitted correspondence alleging that most days, his bowel drains, and he regularly messes his underwear. Pads helped this problem. The Veteran was afforded a VA examination in February 2015. The Veteran did not have any signs or symptoms attributable to any non-surgical-infectious intestinal conditions. He did have occasional episodes of bowel disturbance with abdominal distress, exacerbations, or attacks. He had three exacerbations in the past 12 months. He did not have weight loss or any other serious complications, including malnutrition. In June 2017, he reported that he had four to five bowel movements in the morning and two in the afternoon. The Veteran was afforded another VA examination in August 2020. He reported that he experienced random episodes of diarrhea and constipation with several weeks in duration. He described these occurrences as having watery diarrhea mixed with prolonged, painful episodes of constipation. The examiner noted that the Veteran did not required continuous medication for his disorder. There were no episodes of bowel disturbance with abdominal distress. Additionally, no weight loss, malnutrition, or other health effects were noted. In September 2021, the Veteran was afforded another VA examination for his small bowel obstruction. He had alternating diarrhea and constipation for two or three weeks. He did not have episodes of bowel disturbance with abdominal distress, or exacerbations or attacks of his small bowel obstruction. He did not have weight loss or any other serious complications, including malnutrition. The Veteran reported that any exertional force caused incontinent stool. Based on the evidence discussed above, as well as the Veteran's statements regarding his symptoms, the Board concludes that the criteria for a rating in excess of 10 percent rating under DC 7319 have not been met at any point during the appeal period. In particular, the evidence does not show that he is in more or less constant abdominal distress. While he does have alternating diarrhea and constipation, the evidence does not support that he has exacerbations that result in constant distress, or any associated serious complications. Therefore, the Board finds that he has moderate symptoms, which are contemplated by the currently assigned 10 percent rating. The Board has considered the application of other DCs pertaining to the gastric system. See Mittleider v. West, 11 Vet. App. 181, 182 (1998)). However, a higher rating under any of the other DCs applicable to gastrointestinal disorders is not warranted in this case. For one thing, the Veteran has not been diagnosed with any other gastric disorders (such as gastritis, GERD, or pancreatitis) during the appeal period. See 38 C.F.R. § 4.114 (noting that ratings under the DCs applicable to disabilities of the digestive system will not be combined with each other; instead, a single evaluation will be assigned under the DC which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation). Moreover, the Board has contemplated the full extent of the Veteran's symptoms, to include diarrhea, bowel disturbance, and abdominal distress, in assigning a compensable rating. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his small bowel obstruction. The Board acknowledges that the Veteran, in advancing this appeal, believes that his disability is more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed, specific, and specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the Veteran's symptoms. Moreover, the medical evidence as described above is largely consistent with the Veteran's descriptions of his symptoms. The Board has taken both lay and medical evidence into account when determining that a 10 percent rating is warranted. In sum, the evidence deemed most probative by the Board establishes that the Veteran's small bowel obstruction more nearly approximates the criteria for a 10 percent rating throughout the entire appeal period. As shown above, the Board has considered the Veteran's symptoms under other pertinent criteria, but finds that there are no other DCs which either provide for an evaluation higher than the currently-assigned rating of 10 percent, or are appropriate for rating the Veteran's small bowel obstruction. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. at 369-70. Accordingly, given the Veteran's symptomatology, the most appropriate DC for rating purposes is DC 7319. The preponderance of the evidence is against a rating in excess of 10 percent. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. Based on the favorable action noted above, the Board finds that adjudication of his claim for TDIU should be deferred until the RO implements the grant of service connection for the Veteran's low back disability. After the implementation, the RO should reconsider the Veteran's TDIU claim and obtain any additional developments as necessary. The matters are REMANDED for the following action: 1. Implement the Board's decision herein granting service connection for a low back disability. 2. Conduct any other development deemed necessary and readjudicate the remanded TDIU claim. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.