Citation Nr: 21071401 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-31 365 DATE: November 30, 2021 ORDER Service connection for a lower back disability is granted. REMANDED Service connection for bilateral pes planus is remanded. FINDING OF FACT The preponderance of the competent medical evidence weighs for finding that the Veteran's lower back disability was incurred in or aggravated by service and is directly related to service. CONCLUSION OF LAW The criteria for service connection for a lower back disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1994 to February 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in March 2019. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). 1. Service connection for a lower back disability is granted. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. 38 U.S.C. § 5107 (b). 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. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background & Analysis The Veteran's contention is that he has a lower back disability is causally related to his service. Service treatment records (STRs) document a report of lower back pain in February 1994 due to playing basketball. He was noted to have pain on palpation and when bending and standing for prolonged periods. Lower back pain was again reported in January, February, and March 1995 towards the left side. The Veteran reported that it hurt to bend down and sometimes to walk, and he had been experiencing pain for the previous 4 months. He also reported pain radiating to his left lower extremity and muscle spasms. He was diagnosed with a muscle strain and was prescribed Motrin and no physical training for 2 weeks. An August 2011 lumbar spine radiology report reflected lower back diagnoses of straightening indicating muscle spasm and disc space narrowing at the L5-S1 vertebrae. A September 2011 physical examination report from Immediate Care Center of Georgia, LLC reveals subjective reports of pain in the lower back which began during service in 1994. In December 2019 the Veteran submitted a private Disability Benefits Questionnaire (DBQ) completed by a qualified medical professional. The clinician diagnosed mechanical back pain syndrome, a lumbosacral strain, degenerative disc disease, and radiculopathy. After a review of the claims file, the clinician opined that it is more likely than not that the Veteran's lower back disabilities are causally related to his service. The clinician explained that the Veteran's STRs show an onset of lower back symptoms during service in 1994 and that these symptoms have been progressing since that time. These symptoms worsened to the point that the Veteran required a laminectomy at the L5-S1 vertebrae and eventually a discectomy leaving the Veteran with residuals and an irregular gait. The Board finds that this positive nexus opinion is sufficient to establish that the Veteran's lower back disability was incurred in or aggravated by service and is causally related to his documented in-service treatment for lower back pain. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The clinician provided a definitive nexus opinion using the correct standard of proof with an adequate supporting rationale, and there is no indication that they were not fully aware of the Veteran's past medical history or misstated any relevant fact in providing their opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). Considering the above competent medical evidence, the Board finds that service connection is warranted for a lower back disability and the claim is granted. REASONS FOR REMAND 2. Service connection for bilateral pes planus The Veteran stated in the September 2017 substantive appeal (VA Form 9) that he has bilateral pes planus that preexisted service and was aggravated during his time in service because of wearing boots during physical training. A January 1994 enlistment examination indicates that the Veteran entered service with asymptomatic mild pes planus. Considering the Veteran's contention, the Board finds that the Veteran must be examined to assess his claimed pes planus and an opinion from a qualified medical professional must be obtained to determine whether his preexisting pes planus was worsened beyond its natural progression by his service. The Board observes that the Veteran was scheduled to be examined in connection with this claim following the March 2019 Remand but stated in a December 2019 submission that he was not willing to attend an in-person VA examination. Under 38 C.F.R. § 3.655, if a Veteran fails to attend a VA examination without good cause in an original claim for compensation, then the claim will be rated based on the evidence of record. The Veteran is advised that his claimed benefit cannot be established or confirmed without a current VA examination. The Veteran is therefore again asked to assist in the development of his claim by attending a VA examination. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records. 2. Schedule the Veteran for a VA examination to determine the current nature of his bilateral pes planus. The VA examiner is requested to review all pertinent records associated with the claims file, including a copy of this Remand. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner must indicate that the claims file was reviewed. After reviewing the evidence and any pertinent medical literature, the examiner should answer the following: Is it clear and unmistakable that the bilateral pes planus was NOT aggravated in service beyond its natural progression? In answering this question, the examiner must address the Veterans claim that his mild asymptomatic pes planus at the time of his enlistment worsened due to marching in boots during physical training during service. For the sole purpose of this opinion, consider the Veteran's statements credible. (Continued on the next page) A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.