Citation Nr: 21065867 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-47 914 DATE: October 27, 2021 ORDER Entitlement to service connection for a back disability, to include lumbar disc disease and degenerative arthritis of the spine, is granted. Entitlement to service connection for bilateral lower extremity radiculopathy, as secondary to a back disability, is granted. REMANDED Entitlement to an initial compensable rating for postural orthostatic tachycardia syndrome prior to May 13, 2016 and in excess of 10 percent, thereafter, is remanded. The propriety of the rating reduction for postural orthostatic tachycardia syndrome from 10 percent to noncompensable, effective August 1, 2021, is remanded. Entitlement to an effective date prior to March 16, 2015 for the award of service connection for postural orthostatic tachycardia syndrome is remanded. FINDINGS OF FACT 1. The Veteran's back disorder, diagnosed as lumbar disc disease and degenerative arthritis of the spine, is related to active service. 2. The Veteran's bilateral lower extremity radiculopathy is proximately due to his back disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lumbar disc disease and degenerative arthritis of the spine are met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309. 2. The criteria for service connection for bilateral lower extremity radiculopathy, as secondary to service-connected back disability, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 2008 to October 2009, to include service in Southwest Asia. His decorations include the Combat Action Badge. He also has additional Reserve service, including periods of active duty for training (ACDUTRA) from November 2003 to May 2004 and from July 2006 to February 2007, and in August 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2016 and March 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A July 2017 rating decision increased the postural orthostatic tachycardia disability to 10 percent, effective May 23, 2016. The Veteran testified before the undersigned in June 2021. The Board notes that rating reduction claims are separate from increased rating claims. Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). However, in this case, the rating reduction resulted from the Veteran's claim for a higher rating for his heart disability. Therefore, both the increased rating claim and the propriety of the rating reduction are on appeal. 1. Entitlement to service connection for a back disorder is granted. Service connection maybe established for a disability resulting from injury or disease incurred in or aggravated during active service. 38 U.S.C. § 1110. Active service includes active duty, any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled from an injury incurred or aggravated in line of duty. 38 C.F.R. § 3.6. Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Regarding the first element of service connection, the Veteran has been diagnosed with lumbar disc disease and degenerative arthritis of the spine. See July 2019 VA examination report; October 2020 VA treatment record. Regarding the second element of service connection, in-service injury, the Veteran testified that he injured his low back during ACDUTRA in August 2015 following jumping out of a truck after an accidental fire extinguisher discharge. See June 2021 Board Hearing at 4-7. Following the August 2015 injury, a formal investigation report shows that the injury occurred in the line of duty. Therefore, an in-service injury is conceded during a period of ACDUTRA. 38 U.S.C. § 101; see 38 C.F.R. § 3.6. Thus, this appeal turns on whether there is a nexus between the Veteran's back disorder and service. The Veteran has competently and credibly testified that his back pain has been continuous since the August 2015 injury. See May 2017 Correspondence. Accordingly, a nexus to service is established via competent and credible evidence of continuity of back symptomatology. See 38 U.S.C. §§ 1101 (3), 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). Additionally, Dr. D.W.B., a VA primary care physician, opined that the Veteran's lumbar disc disease was sustained following a twisting injury to the low back during the August 2015 fire extinguisher injury that has resulted in chronic residual low back pain. See December 2020 VA treatment record. There is no contrary opinion of record. Accordingly, all necessary elements are met, and service connection is warranted. 2. Entitlement to service connection for bilateral lower extremity radiculopathy is granted. Further, the competent medical evidence of record relates the Veteran's current bilateral lower extremity radiculopathy to his low back disability. See April 2019 VA treatment record; July 2019 VA examination report. There is no evidence to the contrary. Thus, the Board concludes that the criteria for service connection for bilateral lower extremity radiculopathy, as secondary to his now service-connected back disability, are met. 38 C.F.R. § 3.310. REASONS FOR REMAND 3. Entitlement to an initial compensable rating for postural orthostatic tachycardia syndrome prior to May 13, 2016, and in excess of 10 percent, thereafter, is remanded. 4. The propriety of the rating reduction for postural orthostatic tachycardia syndrome from 10 percent to noncompensable, effective August 1, 2021, is remanded. The Board notes that new evidence regarding the heart disability has been associated with the file since the September 2018 supplemental statement of the case (SSOC), the last agency of original jurisdiction (AOJ) action addressing the heart disability. Specifically, the Board notes a July 2019 VA heart examination. The AOJ has not considered this evidence in the first instance, and remand is therefore required for the same. Action on the inextricably intertwined reduction claim is deferred pending this development. Any outstanding treatment records should also be secured. 5. Entitlement to an effective date prior to March 16, 2015 for the award of service connection for postural orthostatic tachycardia syndrome is remanded. In January 2017, the Veteran filed a timely Notice of Disagreement with a January 2016 rating decision assigning March 16, 2015 as the effective date for service connection for postural orthostatic tachycardia syndrome, requiring issuance of a statement of the case (SOC) on remand. Manlincon v. West, 12 Vet. App. 238 (1999). The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Consider the evidence associated with the file since the September 2018 SSOC, particularly the July 2019 VA heart examination, and issue a SSOC with regard to entitlement to an increased rating for postural orthostatic tachycardia syndrome. If any benefit sought remains denied, issue a SSOC. 4. Issue a SOC addressing the issue of entitlement to an effective date prior to May 13, 2016 for the award of service connection for postural orthostatic tachycardia syndrome, along with appellate rights. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Forde, 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.