Citation Nr: 21064977 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 14-03 301 DATE: October 22, 2021 ORDER Entitlement to service connection for lumbar spondylosis and discogenic disease (back disability) is granted. Entitlement to service connection for degenerative joint disease of the cervical spine (neck disability) is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's back disability is related to an in-service combat injury. 2. The evidence is at least evenly balanced as to whether the Veteran's neck disability is related to an in-service combat injury. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for back disability have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for neck disability have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1950 to September 1970, including combat service in the Republic of Vietnam and Korea. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim for service connection for a neck back, neck disability, and peripheral neuropathy. In June 2012, the Veteran filed his notice of disagreement and, in January 2014, he was issued a Statement of the Case. In January 2014, the Veteran perfected his appeal to the Board. In August 2016, the Board remanded the claims for back disability, neck disability and peripheral neuropathy for further evidentiary development. A Supplemental Statement of the Case was issued in October 2017 continuing the denials of service connection for back and neck disability and peripheral neuropathy. The claim was again remanded by the Board for additional development in January 2018 and September 2019. In July 2020, the Board denied the Veteran's claim for back and neck disability and remanded the claim for peripheral neuropathy to the RO. In response to the July 2020 Board decision denying the claim, the Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (CAVC). A Joint Motion for Partial Remand (JMPR) was filed and in May 2021, the CAVC issued an Order vacating the December 2018 denial, and returned the case to the Board for action consistent with the JMPR. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F. 3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuous symptoms after separation is required. Entitlement to service connection based on chronicity or continuous symptoms pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis is a chronic disease and degenerative joint disease is a synonym for arthritis. Greyzck v. West, 12 Vet. App. 288, 291 (1999) ("the term osteoarthritis is a synonym of the terms degenerative arthritis and degenerative joint disease"). Combat The Veteran's DD-214 indicates that he received the Combat Infantryman Badge, reflecting that he engaged in combat with the enemy. When a veteran has engaged in combat with the enemy, the combat rules not only reduce the evidentiary burden for establishing in-service injury, but also allow a combat veteran to use "satisfactory lay or other evidence" to establish that he incurred the disability itself in service, even in cases where "there is no official record" that such injury or disability occurred. 38 U.S.C. § 1154 (b); Reeves v. Shinseki, 682 F. 3d 988, 998 (Fed. Cir. 2012). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F. 3d 389, 392 (Fed. Cir. 1996). Nevertheless, even when the claimed cause of a disability is established by lay testimony, this does not prevent a veteran from also invoking the section 1154 (b) rules in order to show that he incurred the disability itself while in service. See Reeves, 682 F. 3d at 999. Entitlement to service connection for lower back disability and neck disability. The Veteran contends that his current low back disability and neck disability are due to an injury he sustained during combat service in Vietnam. The Veteran was diagnosed with lumbar spondylosis and discogenic disease and degenerative joint disease of the cervical spine, as evidenced by an October 2019 VA examination report. Thus, the current disability requirement is satisfied. In a March 2012 statement to a VA examiner, the Veteran stated that he injured himself during service when he entered a bunker and a bomb exploded near him, causing him to fall down several stairs and land on his buttocks. The Veteran stated that he did not seek treatment at that time because he was always in the jungle. He also acknowledged that he did not report his back or neck pain during his discharge examination. As noted above, the Veteran's combat service is significant because it allows a combat veteran to use satisfactory lay or other evidence to establish that he was injured or incurred disability while on active duty, even in cases where there is no official record that such injury or disability occurred. Reeves v. Shinseki, 682 F. 3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154 (b)). Thus, based on the Veteran's competent and credible lay statements as to the circumstances of his injury during service, the in-service injury requirement has been met. The dispositive issue before the Board, then, is whether the Veteran's current lower back and neck disabilities were caused by or related to his in-service injury. In an April 2012 VA examination report, the VA examiner found that it was less likely than not that the Veteran's current lower back disability was incurred in or caused by service. The examiner's reasoning was primarily based on the lack of evidence of a back or neck injury in the Veteran's service treatment records (STRs) or in his discharge examination. Specifically, the examiner stated that there was no evidence in the Veteran's STRs of severe trauma or a previous injury that could be linked to the development of osteoarthritis. In a September 2016 Disability Benefits Questionnaire, a VA examiner noted that the Veteran reported injuring his back and neck in early 1970, during service in Vietnam. The VA examination report indicates that the Veteran stated that he had informed his first sergeant at the time of his injury and of the resulting back and neck pain, however, during the "heat of war" the Veteran was unable to seek medical treatment. The Veteran reported that he has had pain in his neck and lower back ever since then since his separation from service with the pain and stiffness in his neck and back becoming progressively worse in the last ten years. The Veteran described his current low back pain as "constant." The VA examiner found that it was less likely than not that the Veteran's lower back or neck disability were caused by his in-service injury. The examiner noted that the Veteran's STRs did not document the injury and no spinal abnormalities were reported at the Veteran's May 1970 retirement examination. While the examiner acknowledged the Veteran made complaints of back and neck pain during service, he determined these complaints were associated with various other diseases, including infectious mononucleosis. The examiner further noted that on a March 1965 "Report of Medical History" completed by the Veteran, he did not report any complaints of back or neck pain. The examiner concluded that, because the Veteran did not have complaints of lower back or neck pain until more than 40 years after his separation from service, the adverse findings reflected in the Veteran's diagnostic studies are at least as likely as not related to his natural process of aging. In a March 2018 VA medical opinion, a VA examiner concluded that it was less likely than not that the Veteran's current back and neck disabilities were etiologically related to any incident of active duty service, including the 1970 injury suffered by the Veteran when he fell down several stairs during service. The examiner noted that the Veteran's medical records were silent for any back or neck complaints or related treatment for at least ten years after the Veteran's separation from service, therefore, continuity of symptomatology or treatment had not been established. The examiner stated that the Veteran's back and neck disabilities are chronic conditions that tend to get progressively worse over time and are more likely caused by age and obesity. The examiner concluded that there was no evidence to suggest a direct nexus of causality between military service injuries and the Veteran's current back and neck disabilities. Referencing medical literature, the examiner also noted that lumbar and cervical spine conditions are a part of the normal aging process in patients over 40 years old. In October 2019, pursuant to a Board remand (or JMPR), the Veteran underwent additional VA lumbar and cervical spine examinations. In the examination report, the VA examiner opined that the Veteran's back and neck disabilities are unrelated to service. Referencing the Veteran's February 2011 and May 2016 Magnetic Resonance Imaging (MRI) reports, the examiner concluded that, even considering the Veteran's in-service injury, the Veteran's current back and neck disabilities correlate with normal atraumatic changes of the aging process. For the following reasons, the evidence is at least evenly balanced as to whether the Veteran's lower back and neck disabilities are related to his active duty service. As summarized above, the record contains several statements by the Veteran detailing the circumstances of his in-service injury and the persistence of back and neck pain since his separating from service. The Veteran is competent to provide testimony or statements relating to facts of events or symptoms that he has observed and are within the realm of his personal knowledge. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (Fed. Cir. 2007)(a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service). Thus, the Veteran's statements regarding his in-service injury are deemed competent and credible, particularly in light of his combat service. Reeves v. Shinseki, 682 F. 3d at 998. The Board also finds that the medical nexus opinions issued by the March 2018 and October 2019 VA examiners are both inadequate for adjudicative purposes. Both examination reports rely primarily on the lack of documented back and neck disabilities in the Veteran's STRs. However, this is improper as this is precisely the type of reasoning that the combat rules were designed to prevent. Reeves, 682 F. 3d at 998 (Congress enacted the combat law because of its concern that combat veterans faced "major obstacle[s]" when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service, in many instances, medical records do not survive combat conditions and due to the exigencies of battle, soldiers may not immediately seek medical treatment for combat-related injuries). Further, in both examination reports, the examiners failed to adequately discuss the competent and credible lay statements provided by the Veteran as to the continuity of his back and neck pain since his discharge from service. In both opinions, while the examiners indicated that they considered the Veteran's lay statements when making their findings, neither opinion reflected a meaningful discussion of the content of the Veteran's lay statements. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate"). Therefore, the March 2018 and October 2019 medical opinions are inadequate and of little probative value. As noted above, in April 2021, a JMPR was agreed upon by the parties and the Veteran's claims for service connection for lower back and neck disabilities were returned to the Board for action consistent with the JMPR. The parties to the JMPR indicated that the Board erred in its July 2020 decision denying service connection for the Veteran's lower back and neck disabilities, by failing to address the Veteran's lay statements or explain whether they supported a finding of continuity of symptomatology and presumptive service connection under 38 C.F.R. § 3.303 (b). To address the Court-granted JMPR's directives, the Board has considered the Veteran's lay statements pursuant to 38 C.F.R. § 3.303 (b). In this case, the Board finds that the lay evidence is sufficient to decide the claim. The Veteran is competent to report an injury during service and the persistent nature of his back and neck pain symptoms since his discharge. There is no evidence of record to indicate that the Veteran's statements as to the onset of his back and neck disabilities in-service and the continuity of his symptoms since service are not credible. Therefore, the Veteran's lay statements of the onset and worsening of his back disability are competent and credible. Buchanan v. Nicholson, 451 F. 3d at 1336 ("If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence"). There is thus an inadequate negative nexus opinion weighing against the claim, and competent, credible lay evidence in support. At this point, the Board could remand the claim for yet another VA examination or opinion. However, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304 (c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"); Gardner-Dickson v. Wilkie, 33 Vet. App. 50, 62 (2020) (Order) (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case.'") (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). Given the above evidence and the application of the combat rules pursuant to Reeves, the evidence is at least evenly balanced as to whether the Veteran's back and neck disabilities are related to his service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for back disability and neck disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.K. Donaldson, 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.