Citation Nr: 21070607 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 18-51 203 DATE: November 24, 2021 ORDER Entitlement to service connection for degenerative arthritis of the thoracolumbar spine is granted. REMANDED Entitlement to an initial compensable rating for tinea pedis is remanded. FINDING OF FACT The probative evidence indicates that the Veteran incurred a back injury during service, his back symptoms have continually manifested since service, and his back symptoms were subsequently attributed to degenerative arthritis. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative arthritis of the thoracolumbar spine have been met. 38 U.S.C. §§ 1110, 1154(b); 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from November 1968 to November 1971. This appeal originates from an October 2015 Rating Decision in which the Agency of Original Jurisdiction (AOJ), in pertinent part: granted service connection for tinea pedis at 0 percent effective June 17, 2015; and denied service connection for degenerative disc disease (DDD) L4-5 (claimed as back condition). In a May 2020 Decision, the Board, in pertinent part: denied an initial compensable rating for tinea pedis; and denied service connection for a thoracolumbar spine disorder. In a July 2021 Joint Motion for Partial Remand (JMPR), the U.S. Court of Appeals for Veterans Claims (Court) vacated and remanded the May 2020 Board Decision insofar as it denied both issues herein. 1. Entitlement to service connection for degenerative arthritis of the thoracolumbar spine Presumptive service connection may be warranted for certain chronic diseases listed at 38 C.F.R. § 3.309(a), including arthritis, if manifest to a compensable degree within one year from discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Direct service connection may be warranted if the evidence shows: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Although a competent medical opinion is generally required to establish etiology, competent and credible lay evidence of chronicity and continuity of symptomology may also establish etiology; in this regard, claimants suffering from chronic diseases listed in 38 C.F.R. § 3.309(a) are entitled to service connection based on continuity of symptomatology when the evidence demonstrates that symptoms of those conditions have manifested continuously since service separation. 38 C.F.R. §§ 3.303(b), 3.309(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran generally contends that his back symptoms (including pain, spasms, and functional loss), which were subsequently attributed to degenerative arthritis, have manifested continuously since service. See June 2015 VA Form 21-526EZ; October 2015 VA back conditions examination; November 2015 Notice of Disagreement (NOD); June 2017 evaluation by private provider PJY; July 2017 VA Form 21-526EZ; July 2018 VA back conditions examination; October 2018 VA Form 9; April 2020 Brief; June 2021 Brief; July 2021 Court JMPR; November 2021 Brief. Service treatment records are silent regarding any back issues, including pain, upon entrance to service. See August 1968 entrance examination (the Veteran indicated that he did not have any problems with recurrent back pain and the providers did not document any pertinent abnormalities). However, the records show that the Veteran suffered an in-service back injury with subsequently recurring back symptoms. A November 1969 record documented the Veteran's report of back pain with range of motion deficiency. A January 1970 record documented the Veteran's report of back strain possibly resulting from an injury three weeks prior, stiff and tightened muscles, probable spasm, and ineffective treatment; the Veteran also expressed concern that heavy lifting would further injure his back. A February 1970 record documented the Veteran's report of continued lower back pain and spasm. On the September 1971 separation examination, the Veteran indicated "yes" for "back trouble of any kind;" however, the providers did not make any notes describing the ongoing back trouble. In an August 2007 record from Gainesville VAMC, the Veteran reported falling from a ladder resulting in injury to the left ribcage. In a June 2008 record from Gainesville VAMC, the Veteran reported that he was still having problems in the left side of his lower back (popping and sharp pains) after the 2007 fall. An April 2010 record from Gainesville VAMC documented a history of thoracic compression fractures since the 1970s, stable. During the October 2015 VA back conditions examination, the Veteran reported that, in service, he: had back spasms once per week; had difficulty getting off his bunk (and even got disciplined because he could not fall out for formation due to his symptoms); saw providers frequently; and had various physical duties based on his military occupational specialty (MOS). The examiner diagnosed DDD L4-5 based on 2007 imaging. The examiner rendered an unfavorable etiological opinion with the rationale that: (a) per review of literature, DDD develops as a result of aging effects on spine and intervertebral discs; (b) record review is silent for objective evidence of chronic back condition during military service; and (c) medical record review 2006 to 2007 is silent for back condition, with history pertinent for a fall in 2007. However, the examiner's opinion is inadequate because it is based on the inaccurate factual premise that there was no objective evidence of chronic back condition during military service; to the contrary, service treatment records show repeated complaints of back problems from the initial injury throughout service, including on the September 1971 separation examination. As such, the Board gives this opinion no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In the November 2015 NOD, the Veteran reported, in pertinent part, that he: went to sick call almost daily for his back because he could not get off the bed; takes over-the-counter (OTC) medications because he cannot afford to travel to the closest VA; and has suffered from his back symptoms since service. In a June 2017 evaluation, private provider PJY noted that: the Veteran's current medical problems include lumbago; the Veteran reported that, during service, he experienced muscle spasms in his back, was prescribed Amoxicillin, and was disciplined with an Article 15; the Veteran reported suffering from daily low back pain with spasm during service, for which he sought frequent treatment was given medications; the Veteran reported that his chronic low back pain had continued to present without hiatus and had progressively worsened; and the diagnosis was chronic degenerative joint disease of the lumbar spine emphasis lumbosacral region. Provider PJY opined that, because the onset of this condition was during service, it should be service connected. In the July 2017 VA Form 21-526EZ, the Veteran reported chronic low back pain. A January 2018 chest x-ray record from Gainesville VAMC found that: the Veteran's thoracic spine exhibited degenerative changes with spur formation; and there is mild anterior wedging of at least two vertebral bodies in the mid to upper thoracic spine which appeared stable. In a June 2018 Report of General Information, the Veteran reported that his back symptoms began in service and that he went to sick call frequently. During the July 2018 VA back conditions examination, the Veteran reported onset of DDD symptoms in service with muscle spasms, pain, and difficulty getting out of bed since bouncing around in helicopters. The examiner diagnosed degenerative arthritis of the spine, thoracic compression fracture, and radiculopathy. The examiner noted that the Veteran's last report of lumbar problems in service was in February 1970 and that it is common for lumbar strains to resolve in one to three months; the examiner then opined that the current back diagnoses were caused by post-separation manual labor jobs and falling off ladders. However, the examiner's opinion is inadequate because it is based on the inaccurate factual premise that the back complaints ended in February 1970; to the contrary, the Veteran continued reporting back symptoms throughout, including on the September 1971 separation examination. As such, the Board gives this opinion no probative value. Reonal, supra. In an October 2018 VA Form 9, the Veteran: contended that the nurse who conducted the July 2018 VA examination was incompetent to make such findings; reported that he had muscle spasms and functional loss during service for which he was given medication; reported that his in-service duties included riding/sitting on the door of helicopters and getting bounced around like a rag doll while holding on for dear life and still holding onto a gun for protection; and reported that he has had back pain and muscle spasms since service. In the April 2020 Brief, the representative argued that: the Veteran was treated several times for low back pain in service due to an injury and was diagnosed with back strain and spasm; the Veteran's MOS was very physical and required him to frequently be in and out of helicopters and riding in the helicopter while partially handing out of the door when functioning as the door gunner; and the issue should be remanded for a new examination because the July 2018 VA examination was inadequate (examiner noted that findings were inconclusive). In the July 2021 JMPR, the Court found that the Board's May 2020 denial of this issue failed to: address favorable lay statements; adequately respond to arguments regarding the July 2018 VA examination; and adequately explain why service connection based on continuity of symptomatology was not warranted when the Board found the Veteran competent to report his symptoms, which he first experienced in service and continued since. Based on the evidence above, the Board finds that the probative evidence indicates that the Veteran incurred a back injury during service, his back symptoms have continually manifested since service, and his back symptoms were subsequently attributed to degenerative arthritis. Specifically, the Veteran has competently and consistently reported lay-observable back symptoms and related functional loss throughout the appeal period, emphasizing that he was injured in service and has had symptoms resulting in functional loss ever since. Even though the Veteran was not diagnosed with arthritis within one year of separation, he still is entitled to the statutory presumption of continuity of symptomology due to the continual manifestation of his back symptoms (currently diagnosed as arthritis, which is among the chronic diseases listed at 38 C.F.R. § 3.309(a) that are eligible for this theory of service connection). As such, service connection is warranted and the Board grants the claim, resolving it in full. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for tinea pedis In the July 2021 JMPR, the Court found that the Board must obtain a medical opinion, pursuant to the holding in Burton, regarding whether the Veteran's use of Tinactin to treat his skin condition, even when applied topically, was systemic therapy affecting the body as a whole. Burton v. Wilkie, 30 Vet. App. 286, 292 (2018) (holding that the Board must determine [1] whether a topical treatment affects the body as a whole in treating the skin condition, and [2] whether the given treatment is 'like' a corticosteroid or other immunosuppressive drug). Thus, the Board must remand for the AOJ to obtain a medical opinion clarifying whether the Veteran's use of topical therapy throughout the appeal period equates to "systemic therapy" for VA purposes, pursuant to the Burton holding. The matters are REMANDED for the following action: Obtain a medical opinion clarifying whether the Veteran's use of topical Tinactin for tinea pedis equates to "systemic therapy" for VA purposes, including whether it: (a) operates by affecting the body as a whole in treating the Veteran's skin condition; and (b) is "like" a corticosteroid or other immunosuppressive drug. The Board defers to the examiner's discretion to determine whether in-person examination is required to render the requested medical clarification. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.