Citation Nr: 21071035 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 18-16 910 DATE: November 29, 2021 ORDER Service connection for a lumbar spine disability is granted. REMANDED Entitlement to an initial rating in excess of 30 percent for Meniere's syndrome with tinnitus prior to February 2, 2021, is remanded. Entitlement to an initial rating in excess of 10 percent for disc degenerative disease of the cervical spine status post anterior fusion prior to February 2, 2021, and in excess of 30 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to February 2, 2021, is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's lumbar spine disability was incurred during a period of active service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from March 1983 to June 1992 and from October 2001 to September 2002. She had subsequent periods of active service in the reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for a lumbar spine disability, granted service connection for Meniere's syndrome with tinnitus and assigned a 30 percent disability rating, and granted service connection for degenerative disc disease of the cervical spine status post anterior fusion (cervical spine disability) and assigned a 10 percent disability rating, effective February 19, 2014, respectively. The Veteran testified before a Decision Review Officer (DRO) in December 2017. She also testified before the undersigned Veterans Law Judge (VLJ) at a hearing in November 2019. Copies of the transcripts have been reviewed and associated with the claims file. These matters were before the Board in January 2020, at which time they were remanded for additional evidentiary development. In a July 2021 rating decision, the RO increased Meniere's syndrome with tinnitus to 100 percent and increased the cervical spine disability to 30 percent, both effective February 2, 2021. The RO denied entitlement to a TDIU. Entitlement to service connection for a lumbar spine disability Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) or inactive duty training (IDT) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6 (a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Throughout the rating period on appeal, the Veteran has been diagnosed with disc degenerative disease of the lumbar spine and a lumbosacral strain status post laminectomy with Intervertebral Disc Syndrome (IVDS). She asserts that it was incurred in service, including due to a fall sustained while in ACDUTRA status in late October of 2004. The Veteran's service-treatment records reveal that she complained of pain in her lower back while doing sit-ups and was assessed with a possible coccyx injury in March 1983. The Veteran had ACDUTRA service from October 31, 2004, to November 2, 2004. She testified before the DRO in December 2017 and the undersigned VLJ in November 2019 and indicated that she fell down a flight of stairs on her buttocks during the ACDUTRA. Approximately three months later she commenced treatment for back pain. This is corroborated by a January 2005 treatment record, which indicated that she fell down a flight of stairs three months prior and landed on her buttocks. She had pain in her butt bone region since that time and was assessed with a fractured coccyx and low back pain secondary to trauma. A subsequent January 2007 informal line of duty determination was issued, which found that the Veteran's progressive lumbar and lower back pain with degenerative disc disease was incurred in the line of duty. After a review of the evidence, the Board finds that an in-service incurrence has occurred. In this regard, the Veteran had qualifying ACDUTRA service from October 31, 2004, to November 2, 2004. The Veteran has consistently testified that she fell down a flight of stairs while on ACUDTRA during this time period, which was corroborated by the January 2005 treatment record. Moreover, an informal line of duty determination was issued in January 2007, which found that her lumbar spine disability was incurred in the line of duty. The Board finds that the statements by the Veteran are credible and she is competent to describe her injury and subsequent symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-38 (Fed. Cir. 2006). Thus, having established a present disability and in-service incurrence, the remaining question is whether the Veteran's current lumbar spine disability is related to the in-service incurrence. The Veteran underwent a VA examination in January 2018, at which time the examiner concluded that her current back disability was not related to service. The basis for this opinion was, in part, due to the lack of a line of duty report for this fall and no medical records documenting the fall. The Veteran submitted a statement by R.J., M.D., which was dated in May 2018. Dr. R.J. indicated that he had been the Veteran's treating healthcare provider for over 30 years. During the 30 years, she had periodic episodes of acute back pains, but she did not suffer from a debilitating episode since she had the fall and injured her coccyx and lower back in October 2004. Thus, he concluded that the accident in which she fell on the stairs was responsible for her back surgery in 2009. The Veteran was afforded a VA examination in June 2021, at which time the examiner concluded that the Veteran's lumbar spine disability was not related to her complaints of lower back pain in March 1983. After a review of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current lumbar spine disability was incurred during the October 2004 fall. In this regard, her military personnel records reveal that she had a period of ACDUTRA from October 31 to November 2, 2004. She has consistently described a fall that occurred during this time period, which was corroborated by a January 2005 treatment record. Moreover, an informal line of duty determination was issued in January 2007, which found that her lumbar spine disability was incurred in the line of duty. Lastly, her treating physician, Dr. R.J., concluded that the October 2004 fall led to her back disability and ultimate surgery in 2009. The Board acknowledges the negative opinions provided by the January 2018 and June 2021 examiners. However, the Board gives no weight to these opinions. In this regard, the January 2018 examiner found that there was no medical evidence corroborating the October 2004 fall but failed to discuss the January 2005 treatment record. In addition, the June 2021 examiner failed to acknowledge or discuss the October 2004 fall and solely discussed the March 1983 back complaints. In view of the foregoing, and in consideration of the credible lay and medical evidence, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran's lumbar spine disability was incurred in service. In cases where the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 30 percent for Meniere's syndrome with tinnitus prior to February 2, 2021, is remanded. The Veteran has been assigned a 30 percent rating for Meniere's syndrome with tinnitus prior to February 2, 2021. To warrant a higher rating, the evidence would need to demonstrate hearing impairment with attacks of vertigo and cerebellar gait. 38 C.F.R. § 4.87A, Diagnostic Code 6205. Throughout the rating period on appeal, or from February 2014, the Veteran has been prescribed Meclizine. In August 2014 she complained of being off balance and having to take her Meclizine to resolve these complaints. The Veteran underwent VA examinations in January 2018 and June 2021. However, the examiners did not indicate that she suffered from cerebellar gait, which is contrary to the symptoms noted in her treatment records. Moreover, the ameliorating impact of medication may not be considered when evaluating a disability unless it is part of the applicable rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). In the present case, Diagnostic Code 6205 does not reference or consider medication. See 38 C.F.R. § 4.87A. Accordingly, the Board finds that an addendum opinion is warranted to determine the severity of the Veteran's Meniere's syndrome prior to February 2, 2021, without medication. 2. Entitlement to an initial rating in excess of 10 percent for disc degenerative disease of the cervical spine status post anterior fusion prior to February 2, 2021, and in excess of 30 percent thereafter is remanded. Pursuant to the Board's remand instructions, a VA examination was performed in June 2021. After a review of the evidence, the Board finds that the June 2021 examination is insufficient to determine the present claim. In this regard, although pain was noted with weight-bearing, correlating range of motion findings were not provided pursuant to the remand directives and Correia v. McDonald, 28 Vet. App. 158 (2016). Moreover, the examiner did not provide an opinion regarding the residuals of the Veteran's cervical spine disability, including headaches, and did not provide an opinion regarding how far back the June 2021 results apply pursuant to the remand instructions. Accordingly, the Board finds that an addendum opinion is warranted on remand. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities prior to February 2, 2021, is remanded. In the January 2020 remand, the Board instructed the RO to provide the Veteran with the specific notice required in response to a claim for a TDIU, to include a request to submit a VA Form 21-8940. However, there is no indication in the claims file that the RO sent this information to the Veteran. Accordingly, the Board finds that on remand the RO should provide the Veteran with notice of how to substantiate a claim for entitlement to a TDIU. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from March 2021 to the present. 2. Provide the Veteran with notice of how to substantiate a claim for entitlement to a TDIU. Additionally, provide her with VA Form 21-8940 in connection with the inferred claim for entitlement to a TDIU, and request that she supply the requisite information. 3. After completion of #1, forward the claims file, including a copy of this remand, to the June 2021 examiner for an addendum opinion regarding the severity of the Veteran's Meniere's syndrome. A VA examination is only necessary if deemed so by the examiner. If the June 2021 examiner is unavailable, forward to an appropriate clinician. The claims file, including a copy of this remand, should be reviewed in its entirety and such review should be noted in the examination report. The examiner should respond to the following: A. Did the Veteran suffer from cerebellar gait with or without medication prior to February 2, 2021? If so, describe how often. B. Without medication prior to February 2, 2021, would the Veteran have suffered from cerebellar gait? If so, describe how often. C. It is noted that the Veteran suffered from attacks of vertigo, how often did she suffer from these attacks prior to February 2, 2021, with or without medication? D. Without medication prior to February 2, 2021, how often would the Veteran suffer from vertigo attacks? E. With regard to the June 2021 examination, how far back do these results apply? The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner should discuss the August 2014 treatment record noting that the Veteran complained of being off balance and having to take Meclizine. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports are to be considered in formulating any opinion. If any 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. As appropriate, the AOJ should conduct additional development or supplement the record. 4. After completion of #1, forward the claims file, including a copy of this remand, to the June 2021 examiner for an addendum medical opinion regarding the severity of the Veteran's cervical spine disability. If the June 2021 examiner is unavailable, forward to an appropriate clinician. The claims file, including a copy of this remand, should be reviewed in its entirety and such review should be noted in the examination report. The examiner should respond to the following: A. With regard to the June 2021 VA examination, provide an estimate of the Veteran's cervical spine range of motion in the weight bearing position and note at which point there is pain, if any. B. With regard to the June 2021 VA examination and additional evidence of record, including the January 2016 opinion by Dr. R.J. indicating that the Veteran suffered from headaches due to her cervical spine disability, does the Veteran have any residuals associated with her cervical spine disability, including headaches? C. With regard go the June 2021 VA examination, how far back do these results apply? Please note that this claim has been pending since February 19, 2014. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports are to be considered in formulating any opinion. If any 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. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.