Citation Nr: 21065784 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 20-04 378A DATE: October 27, 2021 ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine with current compression fractures T12 through L4 is granted. REMANDED Entitlement to service connection for bilateral hip osteoarthritis (claimed as segmental and somatic dysfunction of pelvic), to include as secondary to degenerative disc disease of the lumbar spine with current compression fractures T12 through L4 is remanded. FINDING OF FACT The competent and probative evidence is in equipoise as to whether the Veteran's degenerative disc disease of the lumbar spine with current compression fractures T12 through L4 is related to his period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative disc disease of the lumbar spine with current compression fractures T12 through L4 are met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2000 to December 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a hearing before the Decision Review Officer (DRO). A copy of the DRO hearing transcript is associated with the claims file. In December 2020, the Veteran testified at a Board videoconference hearing. In a January 2021 letter, the Veteran was notified that the Board hearing transcript was unable to be produced because of an audio malfunction and the Veteran had 30 days to request another hearing. In a February 2021 correspondence, the Veteran's representative indicated that the Veteran did not want another Board hearing. This matter was previously before the Board are remanded for additional development in April 2021. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Arthritis is among the listed conditions. The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. 1. Entitlement to service connection for degenerative disc disease of the lumbar spine with current compression fractures T12 through L4. The Veteran contends that his degenerative disc disease of the lumbar spine with current compression fractures T12 through L4 is due to his military service. After reviewing the medical and lay evidence of record, the Board finds that the Veteran's degenerative disc disease of the lumbar spine with current compression fractures T12 through L4 is attributable to the Veteran's period of active service. A diagnosis of degenerative disc disease of the lumbar spine was initially made following September 2017 imaging and was confirmed during a May 2021 VA examination. Service treatment records revealed that the Veteran presented to the emergency room with low back pain and the clinician diagnosed low back strain. This visit was followed by sick call complaints of low back pain once in January 2001 and twice in March 2001. In March 2001, imaging was normal, and the clinician diagnosed mechanical back pain. By way of history, the Veteran filed his initial service connection claim for a back condition in March 2004, just two months after separation from service. VA treatment records from March 2004 documented an emergency room visit for back pain during which the Veteran indicated he had experienced back problems for two years. He was afforded a VA examination in January 2005. The examiner noted there was a history of low back pain during service due to heavy physical activity and a lot of lifting. Diagnostic imaging of the lumbar spine was normal and no other significant abnormal findings, other than the Veteran's subjective complaints of pain, were reported. The Board finds that the first two service connection requirements of a current disability and an in-service injury or event are met. Thus, the question for the Board is whether the Veteran's degenerative disc disease of the lumbar spine with current compression fractures T12 through L4 is related to service. The Veteran began receiving chiropractic care for his lumbar spine in 2016. The Veteran presented with moderate to severe muscle spasms and severely reduced range of motion with pain noted throughout the lumbar spine. In June 2018, the Veteran testified that he injured his back in the Navy and went to sick call at least 8 to 10 times for complaints of back pain. During this DRO hearing, the Veteran further testified that his back condition worsened between 2010 and 2013 and he remains in pain. In June 2020, the Veteran submitted a private medical opinion from a Dr. G.F., a board-certified chiropractor who began treating the Veteran in May 2019. Dr. G.F. explained that he reviewed the Veteran's medical history and the circumstances and events of his military service. He indicated he examined the Veteran and diagnosed segmental and somatic dysfunction of the lumbar spine with associated lumbago and right sided sciatic pain. Dr. G.F. opined that it was at least as likely as not that the Veteran's back condition was a result of injury due to military service. He reasoned that, based on his knowledge, no other risk factors precipitated the Veteran's current condition. After the April 2021 Board remand, the Veteran was afforded a VA examination. May 26, 2021, VA Examination. The examiner opined that the Veteran's degenerative disc disease of the lumbar spine with current compression fractures T12 through L4 were less likely related to military service. The examiner relied on the separation medical history form indicating no history of recurrent back pains and normal spine exam, normal diagnostic imaging in January 2005, and the length of time since service to support his negative nexus opinion. In rendering his opinion, the examiner noted that he reviewed Dr. G.F.'s opinion and highlighted that Dr. G.F.'s treatment of the Veteran began many years after service. In light of the foregoing, the positive and negative evidence regarding the material issue of a nexus between the current disability and the Veteran's period of active service is evenly balanced. Resolving all doubt in favor of the Veteran, the Board finds that degenerative disc disease of the lumbar spine with current compression fractures T12 through L4 is attributable to service and the claim for service connection is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hip osteoarthritis (claimed as segmental and somatic dysfunction of pelvic), to include as secondary to degenerative disc disease of the lumbar spine with current compression fractures T12 through L4, claimed as back condition, is remanded. The Board is not able to make a fully informed decision on the issue of entitlement to service connection for bilateral hip osteoarthritis (claimed as segmental and somatic dysfunction of pelvic) to include as secondary to degenerative disc disease of the lumbar spine with current compression fractures T12 through L4, claimed as back condition. The Board notes that while the claimed condition is segmental and somatic dysfunction of pelvic, the Veteran is competent to testify as to the symptoms he can observe, but he is not competent to diagnose. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). The Board finds that the Veteran's symptoms encompassed bilateral hip osteoarthritis as diagnosed during a May 2021 VA examination. In rendering the secondary service connection opinion, the May 2021 examiner concluded that there was no current diagnosis of segmental and somatic dysfunction of pelvic. He further determined that the Veteran's complaints stemmed from his degenerative disc disease and bilateral hip osteoarthritis. The examiner opined that degenerative disc disease and bilateral hip osteoarthritis was less likely related to service because both were diagnosed many years after service. Considering that service connection for degenerative disc disease of the lumbar spine with current compression fractures T12 through L4 was granted in this decision, the Board finds that the examiner's opinion is inadequate as it is based on the inaccurate premise. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). Once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A remand for a new examination is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with the appropriate clinician to determine the nature and etiology of the Veteran's bilateral hip osteoarthritis (claimed as segmental and somatic dysfunction of pelvic). The examiner should review the claims file and address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hip osteoarthritis (claimed as segmental and somatic dysfunction of pelvic) (1) manifested during active service or is otherwise related to an in-service injury, event, or disease, (2) manifested within one year after discharge from service, or (3) was noted in service with continuity of the same symptomatology since service. (b.) Whether it is at least as likely as not that degenerative disc disease of the lumbar spine with current compression fractures T12 through L4 proximately caused bilateral hip osteoarthritis (claimed as segmental and somatic dysfunction of pelvic). (c.) Whether it is at least as likely as not that current bilateral hip osteoarthritis (claimed as segmental and somatic dysfunction of pelvic) has been aggravated (i.e., worsened beyond the normal progression of that disease) by degenerative disc disease of the lumbar spine with current compression fractures T12 through L4. 2. A rationale for all opinions is to be provided. All pertinent evidence, both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ball Jackson, 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.