Citation Nr: 21065112 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-50 108A DATE: October 25, 2021 ORDER Entitlement to service connection for lumbosacral strain is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's lumbosacral strain is related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for lumbosacral strain have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1997 to November 1998, and in the Army from July 2000 to March 2003. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board remanded the Veteran's appeal to the RO for further evidentiary development. The remand directed the RO to obtain a medical opinion as to whether the Veteran's low back disability was related to his active-duty service. Subsequently, an August 2020 rating decision granted entitlement to service connection for degenerative arthritis of the left shoulder and for a right knee strain. As this constitutes full grants of the benefits sought on appeal in regard to the left shoulder and right knee disabilities, there remain no issues of controversy for adjudication by the Board on those claims. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). A Supplemental Statement of the Case was also issued in August 2020, continuing the denial of entitlement to service connection for spinal arthritis and degenerative disc disease. The claim was originally claimed as service connection for spinal arthritis and degenerative disc disease. The evidence below shows that the Veteran has not been diagnosed with spinal arthritis or degenerative disc disease, but he has been diagnosed with lumbosacral strain; thus, the Board has recharacterized the issue as noted on the first page of this decision. See Brokowski v. Shinseki, 23 Vet. App. 79, 86 (2009) (finding that a claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition; rather, he sufficiently files a claim for benefits 'by referring to a body part or system that is disabled or by describing symptoms of the disability'). Entitlement to service connection for lumbosacral strain 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. § 1110; 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). Turning to the evidence, the Veteran's service treatment records show that in February 2001 he reported pain in his shoulder, neck and back. In October 2001, the Veteran reported low back pain again. The Veteran's report of medical history prepared in January 2003 prior to separation stated that he had recurrent back pain and numbness or tingling, and the Veteran said that he was told that he had chronic lower back pain. He reported back pain to the examiner who performed the separation examination, but the examiner found the Veteran's back to be normal. The Veteran reported ongoing back and neck pain in September 2010 VA treatment records. He reported the back pain again in January 2015 and a VA clinician assessed chronic back pain. He reported back pain again in March 2015 and in January 2017. A Compensation and Pension Examination for Back Conditions was completed in February 2017. The examiner diagnosed a lumbosacral strain with no other disability of the back. The Veteran stated that he injured his back during active duty in the Marine Corps while lifting heavy objects. He reported current symptoms including low back pain, popping and grinding, and said that he was unable to sit for extended periods or lift items. He was using naproxen, tramadol, and acetaminophen for his condition at the time of the examination, and he had undergone at least one spinal injection in the past. On examination, the Veteran had reduced range of motion in extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation, with pain on forward flexion and left lateral flexion and pain on weight-bearing. The examiner found no radiculopathy. The examiner stated that diagnostic imaging showed that the bone structure was normal. The examiner remarked that the evidence did not show degenerative disc disease. February 2017 imaging of the lumbar spine showed normal mineralization of the bones, no compression fracture, normal disc spaces, and no spondylosis or spondylolisthesis. A medical opinion was prepared in March 2017. The examiner concluded that the back condition was less likely than not related to service because there is no evidence of degenerative disc disease and, although the Veteran had a current lumbar strain, there was no evidence of chronicity of care. A medical opinion was prepared in December 2019. The VA clinician concluded that the Veteran's back condition was less likely than not caused by or incurred during service because, the examiner said, the condition during service was acute and there is no evidence of chronicity of care. In December 2020, a fellow servicemember provided a written statement that the Veteran injured his back in service and that this back injury left the Veteran unable to perform sit-ups. Turning to the criteria for direct service connection, the Veteran has a current diagnosis of lumbosacral strain. See C&P Exam, March 3, 2017. Service treatment records show reports of low back pain in February 2001 and October 2001 and in the January 2003 report of medical examination and report of medical history at separation. The first two requirements of direct service connection are present. See Saunders, 1361. The third requirement of direct service connection is a nexus, a causal relationship between the current disability and the in-service disease or injury. Saunders at 1361. The Board finds that the December 2019 medical opinion is inadequate as it describes the January 2003 separation exam as a "normal exam 2003" but ignores the Veteran's reports of back pain during that examination and in his report of medical history. The opinion also describes the 2001 back pain as acute without addressing the reports of back pain in January 2003. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the Board can reject medical opinions and assign no probative value to opinions based upon facts/premises that have been found to be incorrect or inaccurate); Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (examination inadequate where examiner did not comment on report of in-service injury and relied on lack of evidence in STRs to provide a negative opinion.) As the December 2019 medical opinion is inadequate, there is not an adequate medical opinion on record. The evidence indicating that the Veteran's lumbosacral strain onset in service and continues to the present includes the evidence of back pain in 2001, 2003, 2010, 2015, 2017, and 2019; the medical clinicians describing the condition as "chronic" in VA treatment records of January 2015 and January 2017 as well as during service according to the Veteran's comment in his January 2003 report of medical history; and the absence of any evidence that the condition resolved at any time or that the Veteran injured his back after service. Although the Board could remand the claim for another medical opinion, there is sufficient competent and credible evidence of back symptoms during and since service to decide the claim, and a remand 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"); 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)); Andrews v. McDonough, __ Vet. App. __, No. 19-0352, 2021 U.S. App. Vet. Claims LEXIS 1091, at *23 (June 22, 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"). For the foregoing reasons, the evidence is, at the very least, evenly balanced as to whether the Veteran's lumbosacral strain is related to 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 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.