Citation Nr: 21065108 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-26 715 DATE: October 25, 2021 ORDER Entitlement to service connection for a low back disability is granted. REMANDED Entitlement to service connection for a right-hand disability is remanded. FINDING OF FACT The Veteran's degenerative disc disease of the lumbar spine with left sided sciatica/radiculopathy is related to his active service. CONCLUSION OF LAW The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 2007 to December 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision. In May 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. 1. Entitlement to service connection for a low back disability is granted. The Veteran maintains that his current low back disability is related to an in-service injury that he sustained when he was slammed on his back while participating in Marine Corp Martial Arts Program. See May 2016 Notice of Disagreement. The Veteran states that he has experienced low back symptoms continuously since his active service. See May 2021 Hearing Transcript. For the reasons discussed below, the Board finds that service connection is warranted. Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a). The current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The current disability requirement is also satisfied "when the record contains a recent diagnosis of disability prior to filing a claim for benefits based on that disability." Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328, 1333 (1997); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that pain alone that causes functional impairment can be a disability, even if there is no identified diagnosis. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The first and second elements for service connection, namely a current disability and an in-service incurrence, have been met. 38 C.F.R. § 3.303(a); see Holton, 557 F.3d at 1366; Shedden, 381 F.3d at 1166-67; Saunders, 886 F.3d at 1367-68. Concerning the requirement that the Veteran have a current disability, the June 2017 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire provides that the Veteran has diagnoses of lumbosacral strain, degenerative arthritis of the spine, and spinal stenosis. Diagnostic testing of the Veteran's lumbosacral spine showed a spinal segmentation anomaly, mild disc disease at L5-S1, and left nephrolithiasis. Regarding an in-service incurrence, the Veteran's service treatment records demonstrate that he sustained an injury to his lower back in September 2009 during martial arts training when he was slammed on his back. He reported aching and sharp pain for approximately one month after his injury. The pain eased to become aching, but he experienced flare in January 2010 when he was wearing gear and drilling in the field. He had constant aching pain that worsened to become sharp when he turned left or right. The pain was located in the middle to right of his lower back. He did not have radiating pain, tingling, or numbness in his legs or feet. The Veteran was placed on light duty due to low back pain/segmental dysfunction of his lumbar region. Further he received chiropractic treatment and physical therapy during his active service as a result. He was provided with diagnoses of segmental dysfunction of lumbar region and myalgia and myositis. Lastly, the Veteran's claims folder contains a June 2017 VA medical opinion addressing the relationship between his current low back disability and his active service. The medical opinion states that it is at least as likely as not that the Veteran's degenerative disc disease of the lumbar spine with left sided sciatica/radiculopathy is related to his active service. In support, the medical opinion provides that examiner reviewed the Veteran's VA treatment records, medical history, physical examination, diagnostic tests, and medical literature. The Veteran's service treatment records demonstrate that he underwent numerous chiropractor visits, physical therapy visits, and office visits for low back pain during his active service. The Veteran had a chronic low back strain that has worsened to early degenerative disc disease of the lumbar spine with left sciatica/lumbar radiculopathy. The Veteran's examination is consistent with what was noted from previous providers from his active service strains. Therefore, it is as likely as not the Veteran's degenerative disc disease of the lumbar spine with left sided sciatica/radiculopathy is an extension of his chronic lumbar strain that is documented in his service treatment records. The Board finds that the determination of the June 2017 VA examiner concerning the relationship between the Veteran's low back disability and his active service to be especially probative. This finding is underpinned by sufficient rationale, including the clinical findings made on examination, a review of the Veteran's medical and service history, medical literature, and the lay evidence of record. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."); see also Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) (reflecting that the Board is free to assess medical evidence and is not obligated to accept a physician's opinion). The Veteran's claims folder does not contain a medical opinion disassociating his low back disability from his active service. In sum, the preponderance of the evidence weighs in favor of service connection for the Veteran's current low back disability. The evidence contained in the Veteran's claims folder demonstrates that he has a current disability, that he sustained an in-service injury, and that there is link between the current disability and the injury incurred during his active service. Consequently, the benefit-of-the-doubt rule does not apply, and service connection is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND Unfortunately, the Veteran's claim for service connection must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim, so he is afforded every possible consideration. 1. Entitlement to service connection for a right-hand disability is remanded. To evaluate the nature and etiology of the Veteran's claimed right-hand disability, the was afforded an April 2015 Hand and Finger Conditions Disability Benefits Questionnaire. The examination report states that the Veteran does not have and has never had a hand or finger condition. The medical history section states that the Veteran's reported an in-service right-hand injury that he sustained when he fell while running and that his current symptoms are a weakened grip when using tools or exercising. However, the Board finds that the April 2015 examination report is inadequate because pain alone, without an identified underlying disease or pathology, may constitute a disability for VA compensation purposes if it produces functional impairment. Saunders, 886 F.3d at 1367-68 (Fed. Cir. 2018). In this regard, the Federal Circuit held that the term "disability" in § 1110 refers to functional impairment of earning capacity, not the underlying cause of that disability. Id. Thus, the Federal Circuit's holding in Saunders extends to any symptom or condition that produces functional impairment. Therefore, on remand, the Veteran should be scheduled for an additional examination to identify any functional impairment associated with his right-hand symptoms and the nature and etiology of any right-hand disability. The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from April 2021 to the present. 2. After the above development is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right-hand disability. The examiner must review the Veteran's claims folder. The examiner must: (a.) Identify all current right-hand disabilities found to be present. Obtain from the Veteran all functional limitations caused by right-hand symptoms, including any impact on his ability to work. (b.) Opine whether it is at least as likely as not that any diagnosed right-hand disability, to include numbness, swelling, and stiffness, resulting in functional impairment of earning capacity, had its clinical onset during his active service or is related to an in-service injury, event, or disease, including a right-hand injury he sustained during weapons training. In providing the above opinion, the examiner should consider: A February 2009 in-service Radiology Report that indicates the Veteran sustained a bent first digit right hand injury from his rifle sling and flak while trying to take his gear off. He had positive edema and ecchymosis and had decreased range of motion. Diagnostic imaging showed no acute osseous or joint space abnormalities. A February 2009 Twentynine Palms Orthopedics service treatment record that characterize the Veteran's right thumb/hand injury as a hyperextension injury that resulted in immediate pain, swelling, and bruising. Two weeks following the injury, the Veteran had ecchymosis, tenderness, and soft tissue swelling to his ulnar collateral ligament region and along the thumb metacarpal. He was unable to oppose his small finger. He was diagnosed with finger strain right thumb metacarpophalangeal joint. He was placed in a short arm case thumb spica and it was determined that he may need to wear the cast for 6 to 8 weeks. Lay statements contained in the Veteran's claims folder concerning his reported and observed symptoms during and after his active service, including his May 2016 Notice of Disagreement, in which he stated that he injured his right-hand during weapons training, that he received treatment as the base hospital, was issued a profile, and was required to wear a cast for 6 to 8 weeks as a result. During the May 2021 hearing, he advised that he has current symptoms of right-hand numbness, swelling, and stiffness below his thumb and near his palm that is associated with loss of strength and loss of grip strength. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.