Citation Nr: 21064497 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 18-30 447 DATE: October 20, 2021 ORDER Entitlement to service connection for a back disorder, to include degenerative arthritis of the spine with intervertebral disc syndrome (IVDS) and spinal stenosis with fusion, is granted. FINDING OF FACT The Veteran's back disorder, to include degenerative arthritis of the spine with IVDS and spinal stenosis with fusion, is related to active duty service. CONCLUSION OF LAW The criteria for service connection for a back disorder, to include degenerative arthritis of the spine with IVDS and spinal stenosis, with fusion are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1982 to March 1986. This matter comes before the Board of Veterans' Appeals (Board) from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). This matter was previously before the Board in June 2019 at which time the Board denied entitlement to service connection for a back disability. In April 2020, the parties filed a Joint Motion for Remand (JMR) to vacate and remand a June 2019 Board decision that denied this issue. In April 2020, the Court issued an order granting the JMR and remanding the appeal for action consistent with the JMR. This matter was previously before the Board in August 2020 at which time it was remanded. 1. Entitlement to service connection for a back disorder, to include degenerative arthritis of the spine with IVDS and spinal stenosis with fusion 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. §§ 1131, 5107; 38 C.F.R. § 3.303. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Analysis The Veteran was diagnosed with degenerative arthritis of the spine; intervertebral disc syndrome; spinal fusion; spinal stenosis; bulging disc; and bilateral lower extremity radiculopathy. Therefore, he has met the first element required to establish service connection, a current diagnosis. As to the second element, an in-service event, illness, or injury, the Board observes that the Veteran's service treatment records dated January 1984 note the Veteran presented with pain to his upper back for two days. He stated that he was lifting heavy boxes when he injured his upper back. Examination revealed sore, tight muscles. Muscle strain was diagnosed. On the December 1985 separation examination, the Veteran's spine was noted as normal. On the accompanying report of medical history, the Veteran denied having recurrent back pain. The Veteran has asserted that the 1984 documented in-service injury and several undocumented injuries during service caused his back disorder. The Veteran was afforded a VA examination in February 2017. He was diagnosed with degenerative arthritis of the spine (1998); intervertebral disc syndrome (1998); spinal fusion (1998, 2006); spinal stenosis (1998); and radiculopathy, left lower extremity (2017). The examiner noted that in January 1984 while in service, the Veteran lifted a box and hurt his back. The Veteran also reported several other episodes of back injury during active service. The examiner noted that the Veteran's condition progressively worsened after service. The Veteran began going to a chiropractor, who helped him for a long period of time, and later had physical therapy and cortisone injections and the condition got worse and eventually he had to have surgeries. The examiner noted that the Veteran had numbness and weakness in both legs, his left leg is worse. He reported that the pain in his back and numbness of legs is much better after the last surgery. The Veteran wasn't seeing a specialist; only his family doctor. He had surgery in April 1998 and October 1998 and in 2006. Dr. C. did the last two surgeries. Dr. Y. did the first surgery. The Veteran reportedly takes Motrin, no other current medications. Activity modification was noted. The examiner described muscle spasm, diffusely noted with etiology of DJD, IVDS, status post back surgeries, not resulting in abnormal gait or abnormal spinal contour. Decreased sensation to light touch of left anterior thigh, thigh/knee, lower leg/ankle, and foot/toes was noted. As to radiculopathy, mild radicular pain of left lower extremity was noted. Mild paresthesias and/or dysesthesias of left lower extremity. Mild numbness of left lower extremity was noted. Involvement of left side L4/L5/S1/S2/S3 nerve roots (sciatic nerve) was noted. The severity of left side radiculopathy was described as moderate. IVDS was noted and arthritis was documented in imaging studies. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that evaluation and records review was not consistent with current condition being predisposed to by in-service noted injuries-events. The examiner noted a back injury around 1984 - no other significant back injuries or complaints are noted or documented during balance of additional 3 years in service - this type of injury should be self-limited and his service records appear consistent with this thus, the examiner reasoned that that his service complaints are not consistent with current noted conditions. In January 2018, the Veteran's private chiropractor submitted an opinion as follows: As I have had the pleasure of getting to know [the Veteran} and the health of his spine over the years I can honestly say in my professional opinion with a reasonable degree of certainty, "It is as likely as not that [the Veteran's" back condition is caused by his time in the service." The chiropractor also submitted a statement that he initially saw the Veteran in March 1996 for complaints of chronic lower back pain with occasional leg pain. The Veteran explained that he had been in the Army and has had pain ever since then. The chiropractor stated that he treated the Veteran on and off for a 7-year span and was able to stabilize his condition to limited episodes but never completely able to alleviate his condition and referred him to see a spinal surgeon for evaluation. The chiropractor noted that the Veteran's prior history included being seen previously by a chiropractor who had since retired and he and the Veteran were unable to obtain any records for that time frame of approximately 1988. In his February 2018 notice of disagreement, the Veteran contended that he has had back pain due to being an infantry motorman in service. He noted that he spent four years routinely carrying heavy loads, rappelling off helicopters and towers. The Veteran stated that during service in Alaska he had multiple slips and falls on ice while on ruck marches carrying in excess of fifty pounds on his back. He reiterated that these incidents contributed to his current back problems. The Veteran submitted a statement in June 2018 indicating that he had suffered several in-service back injuries. The Veteran stated that he remembered being "bounced around so hard in what was called cattle trucks that the whole unit had some body parts hurting for a few days." He stated that at that time he did not think to put this on record in case he filed a disability claim someday, and he instead just "sucked it up because that is what soldiers do." He described several such similar incidents as follows: When I twisted my knee on a 12-mile forced road march and it swelled up as big as a softball, I put ice on it and sucked it up. That is what a soldier does. I never thought "Man I better go to the doctor because I might want to file for disability someday." When the Blackhawk helicopter I was on in Air Assault school blew a hydraulic line and we had to sit down in the middle of a field ASAP, while we were bounced around like basketballs. When I got hung up on the Air Assault tower during school and my belay man let go of the rope and I fell 10-15 feet on my back. I sucked it up because that's what a soldier does. When we got bounced around in the back of these Deuce and a half trucks being transported from here and there. When we humped the 50 to 60 pound rucksacks at Fort Campbell "all over the countryside." When we got to Alaska and those rucksacks went from 50-60 pounds to 80-100 pounds and carried them and our equipment up and down the mountains slipping and falling on the ice so hard that I dislocated my shoulder twice and the medic just popped it back into place. When I was taught to ski by the Army and crashed so many times, I couldn't even begin to remember everything that was hurt. The Veteran observed that when you are a soldier and you get hurt, you keep going like you are supposed to do. "When you are young, you do not think of the long term affects it has on your body or that it needs to be recorded over and over every time you got hurt." He stated that when he had his exit interview and was asked the health questions, he answered "no problems." He stated, "I never once thought I better say yes, I have problems because I might want to file for disability someday." He stated that a few months after discharge from the Army, he went to a chiropractor who asked him how he hurt his back because his x-rays showed two protruding discs in his lower back. He saw this chiropractor for several years before he retired and then began seeing his current chiropractor. The Veteran stated that it cost him thousands of dollars and he came close to losing everything because of his back. In June 2018, the Veteran's wife submitted a statement that they have been together since they were 16 years old. She stated, "There were many times that he came home from being in the field that he was hurting so bad he could barely walk." She stated that she would put ice bags on his back to keep the swelling down which helped him walk better. She stated that the Veteran has had numerous problems with his back and missed work due to pain. When it would flare-up, they would ice it down which happened routinely until he had surgery. They thought the first surgery had worked but after a month of being back at work, his symptoms returned and icing it down did not seem to help. He had additional MRIs and obtained a second opinion. He had a second surgery within six months of the first one. She stated, "I can't tell you hard it has been to watch [him] struggle with his back." She stated that the third surgery was the hardest. She was scared to leave him for any length of time because he was so weak, he couldn't walk, go to the bathroom without her being there to make sure he didn't fall. He used a walker to get around for several weeks. She stated he always bounced back but "not this time." She observed that "When you are young you think you are invincible, it's not until you get older that you realize you should have done things differently." In its June 2019 decision, the Board denied service connection for a back disorder. The Board found that the evidence showed that the Veteran had residuals of back injuries, to include degenerative arthritis of the spine, intervertebral disc syndrome, spinal fusion, spinal stenosis, and radiculopathy of the left lower extremity. The Veteran's DD 214 Form shows that his military occupational specialty was infantryman. Service treatment records show that in January 1984 the Veteran complained of pain in his upper back after lifting heavy boxes. The assessment was muscle strain. Private medical records show that the Veteran underwent a lumbar laminectomy of disc L5-S1 in April 1994. The diagnoses were herniated nucleus pulposus L5-S1 recurrent, degenerative disc disease L5-S1,and spondylosis at L3-4. Private medical records also show that the Veteran underwent another lumbar decompressive laminectomy L5-S1, posterior lumbar interbody fusion L5-S1, insertion of interbody cages times two at L5-S1, and hemi-laminectomy at L3-4. The diagnoses were herniated nucleus pulposus L3-4, spinal stenosis L3-4, recurrent disc herniation L5-S1, and severe disc degeneration L5-S1. The Board noted that there were medical opinions of record that support and oppose the Veteran's claim. Considering the relative merits of the analytical findings and the details of the opinions, the Board placed more weight on the unfavorable August 2017 VA opinion regarding whether the Veteran's back disability is related to service. The Board rejected the favorable January 2018 private opinion as it was based on the Veteran's medical history as reported by the Veteran. As to the Veteran's lay statements and his spouse's lay statements, the Board found that the Veteran's back disability is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Neither the Veteran nor his spouse have been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Accordingly, the Board found that the lay evidence did not constitute competent medical evidence and lacks probative value. As the lay evidence was not considered competent, the matter of whether it was credible was not reached. The Board acknowledged that arthritis is included among the chronic diseases under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki,708 F.3d 1331 (Fed. Cir. 2013). To the extent that the Veteran asserted continuity of symptomatology, the Board found that his assertions were outweighed by the evidence of record. The board found the preponderance of the evidence was against the claim and the benefit of the doubt doctrine was therefore not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The parties filed a joint motion for remand (JMR) in April 2020, which the Court granted in an order issued that same month. In the JMR, the parties noted that the December 2017 examiner opined that the Veteran's back disability was less likely than not incurred in or caused by service because "no other significant back injuries or complaints are noted or documented" during the three remaining years in service after the 1984 injury, and "his service complaints are not consistent with current noted conditions." The parties agreed that the December 2017 VA examiner's opinion was inadequate as it did not address the Veteran's contentions that he had additional in-service back injuries beyond the 1984 injury addressed by the December 2017 VA examiner, and that it did not address the Veteran's complaints that his "back condition has gotten progressively worse after service." The parties also agreed that the Board provided an inadequate statement of reasons or bases for denying service connection for a back disability because it did not adequately address continuity of symptomatology. The Board acknowledged that arthritis is among the chronic diseases listed in 38 C.F.R. § 3.309(a), but found that the Veteran' assertions as to continuity of symptomatology were outweighed by the medical evidence of record, to include the February 2017 VA medical opinion. The Board found that the Veteran and his wife were not competent to provide an opinion on the etiology of his back disability and because the lay evidence is not competent, the Board it did not make a finding as to the credibility of the evidence. However, it is unclear how the Board weighed the lay evidence of record without determining the credibility of that evidence, including the Veteran's reported history that his "condition has gotten progressively worse after service." Thus, the parties agreed that remand was warranted for the Board to address the lay evidence and whether the Veteran is entitled to service connection based on continuity of symptomatology. The Board remanded in August 2020 for the RO to obtain an addendum medical opinion to address the Veteran's contentions that he had multiple in-service back injuries and that his back disability has gotten progressively worse since service. The Veteran was afforded a VA examination in February 2021. The examiner opined that the Veteran's back disorder is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that during service, upper back strain was acute only. The examiner stated that there is no evidence of chronicity of care and symptoms are subjective only. The examiner stated that a nexus has not been established. The examiner stated that the Veteran reported low back injuries several times in service but were not addressed by medical personnel and no further records are available in the claim file to establish a lower back injury incident. The examiner noted that the Veteran's back disability progressively worsened after service. In March 2021, the Veteran's private physician submitted a nexus statement as follows: [The Veteran] has been a long standing patient of mine since 1988. I have remained his primary physician and have followed [the Veteran] through the years and his ongoing back pain along with 3 surgeries. It is more likely than not that his condition began during active duty service." The Veteran was afforded a VA examination in June 2021. The examiner noted that he was diagnosed with degenerative disc disease other than intervertebral disc syndrome; intervertebral disc syndrome (IVDS); bulging disc, L3-L4; and bilateral lower extremity radiculopathy. The onset date was noted as January 27, 1984. The Veteran reported multiple injuries during military service, including long runs/hikes with ruck sacks, skiing in Alaska, carrying heavy boxes, rappelling training. The Veteran reported worsening since his military service. He had a lumbar laminectomy and excision of disc at L5-S1 on 4/23/98 and subsequently a lumbar decompression and fusion with insertion of interbody cages at the L5-S1 level since exiting the military, with regular follow-ups/treatments with Dr. C. (Orthopedic specialists) and chiropractic care. His current symptoms were noted as upper back-sharp pain/numbness/tingling down through right arm; lower back- radiating pain to bilateral legs, numbness/tingling to bilateral legs. He reported pain at 2/3 at baseline but 10/10 during a flare-up. The Veteran reported currently receiving steroid injections in lower back by neurosurgeon, and taking Motrin 800mg twice daily. He sees a chiropractor once monthly for upper back pain, as his lower back has had multiple surgeries/hardware. The Veteran reported flare-ups. "It just comes on by stuff like getting out of a chair or car or bed. It feels like someone hits me with a baseball bat in the back and I can't move." He stated it "feels like someone suddenly hits you in the back with a baseball bat. Sharp pain down your legs. It throbs nonstop." The Veteran reported the frequency as every 6 months and the duration lasts until he is able to get steroid injections/stronger medication to relieve symptoms, estimated to be about 1 week. Flare-ups occur when lifting, changing positions (getting out of a chair or car), getting out of bed, and bending over to put shoes on. The Veteran reported inability to even walk, put shoes on during a flare-up. The Veteran reported great difficulty with basic tasks, such as fixing meals, toileting, getting dressed, and ambulating. There is no medical opinion related to this examination in the record. With regard to medical opinions, the credibility and weight to be attached to a medical opinion are within the Board's province as finder of fact. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). As to VA medical opinions that oppose a finding of a nexus between the Veteran's current back disorder and service, the 2017 opinion was previously found to be inadequate by the Court. Here, the Board finds that the February 2021 opinion is also inadequate as it failed to substantially comply with the remand directives in that the examiner failed to adequately address the Veteran's lay statements or his spouse's statement and the examiner again relied inappropriately on the absence of documentation supporting the Veteran's assertion that he experienced additional injuries other than the documented 1984 injury. In addition, the examiner noted but did not address the Veteran's assertion of progressive worsening of his back disorder following service. Stegall v. West, 11 Vet. App. 268 (1998). Two private nexus opinions support a finding of a link between the Veteran's current back disorder and service. These opinions were submitted by the Veteran's primary physician whose treatment of the Veteran began in 1988, approximately two years after his discharge from service, and from his treating chiropractor beginning in 1998, who acknowledged that the Veteran had been treated previously by a different chiropractor who has retired. Both the primary physician and the chiropractor treated the Veteran for several years, with the primary physician treating him within two years following discharge from service. While these written medical opinions do not state a supporting rationale, the Board finds that the basis of their opinions, including familiarity with the circumstances of the Veteran's service and knowledge of the Veteran's current disorder, treatment, and potential causes thereof, may be reasonably inferred. The Board finds that these opinions are entitled to higher probative weight than the VA opinions. In the end, however, the Board finds that the Veteran's lay statements are entitled to more probative weight. The Board notes that the Veteran is competent to report that he injured his back during service and also competent to report that he continued to experience symptoms including pain after he was discharged. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the Veteran's statements of continuity of symptomatology are credible and entitled to high probative value. The Veteran's statements are consistent with the circumstances of his service and his documented in-service injury. The Veteran's spouse is also competent to report observable symptomatology capable of lay observation pertaining to his back disability and the Board finds her statements to be credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The Board observes that in its June 2019 decision, the Board found that the evidence shows that the Veteran has residuals of back injuries, to include degenerative arthritis of the spine, intervertebral disc syndrome, spinal fusion, spinal stenosis, and radiculopathy of the left lower extremity. While no other injury other than the 1984 injury was documented during service, the Veteran has competently and credibly asserted that there were additional injuries during service. The lack of contemporaneous medical records, in and of itself, does not render lay evidence incredible. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Further. there is no injury documented after service. The Board also notes the June 2021 examiner's notation that the onset of the Veteran's back disorder was in 1984 during service. As arthritis diseases of the nervous system are chronic diseases, service connection may be granted under a theory of chronicity and continuity of symptomatology. 38 C.F.R. §§ 3.303(a)(b), 3.309(a). Arthritis and diseases of the nervous system are included among the chronic diseases under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki,708 F.3d 1331 (Fed. Cir. 2013). To the extent that the Veteran has asserted continuity of symptomatology, the Board finds his statements are supported by the evidence set forth above, including his documented in-service injury, the circumstances of his service, the medical opinions of his treating physician and chiropractor, the 2019 Board finding that he has residuals of a back injury, the absence of any evidence of an injury subsequent to service, and the June 2021 examiner's notation that the onset of the Veteran's back disorder was in 1984 during service. The Board finds that the evidence is at least in equipoise as to the issue of whether the Veteran's back disability, to include degenerative arthritis of the spine with intervertebral disc syndrome and spinal stenosis with fusion, had its onset during service. Resolving the benefit of the doubt in the Veteran's favor, the Board finds that service connection for the Veteran's back disorder, is therefore warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.