Citation Nr: 21071416 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 12-31 352 DATE: November 30, 2021 ORDER Service connection for a lower back condition is granted. REMANDED Entitlement to service connection for a left hip condition is remanded. Entitlement to an increased rating for inactive pulmonary tuberculosis is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to tuberculosis, is remanded. Entitlement to service connection for asthma, to include as secondary to tuberculosis, is remanded. FINDING OF FACT The evidence is at least in equipoise that the Veteran's current lower back condition originated during service with continuity of symptomatology until the present. CONCLUSION OF LAW The criteria for service connection for a low back condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1964 to December 1965. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2014, the Veteran testified at a video conference hearing in the Huntington, West Virginia RO before the undersigned Veterans Law Judge sitting at the Central Office in Washington, D.C. A transcript of the hearing is available in the record. The Veterans Law Judge (VLJ) who presided over the hearing is no longer employed with the Board. In October 2021, the Board notified the Veteran that he was entitled to a decision by the VLJ who had presided over his hearing, however the Board had a transcript of the hearing and could proceed. If the Veteran did not respond within 30 days from the date of that letter, the Board would assume that he did not wish another hearing and would proceed accordingly. In the subsequent 30 days, the Veteran did not respond, and thus the Board will proceed with a decision based on the present evidence of record. Service Connection 1. Entitlement to service connection for a lower back condition is granted. The Veteran seeks service connection for a lower back condition, arguing it is due to an injury sustained during active service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran testified before the Board in July 2014 that he injured his back during service while working on an airplane on a cold and wet winter day. He fell 5-6 feet from the aircraft and landed on his tailbone. Ever since then, he has had trouble with his back. The Veteran further indicated that he did not seek medical treatment for this injury during service because he was just a kid then. See July 2014 Hearing Transcript. Service medical treatment records do not show any indication of low back pain or treatment for a back condition during the Veteran's military service. The Veteran's military personnel record shows that after recruit training as an aircraft technician, he worked in a naval air training squadron. This generally corroborates the Veteran's assertion of falling from an aircraft while working on it. After about a half year of such work, the Veteran was hospitalized for tuberculosis, and ultimately discharged from the Navy. The Veteran's regular VA medical treatment record shows a history of chronic lower back pain dating to as early as 2008. Notably, in July 2012, the Veteran's left hip was replaced. Medical records around this time indicate that the Veteran's hip pain likely aggravated his lower back pain (though no suggestion is made that his lower back pain could have caused or aggravated his hip condition). Ultimately, however, no clear etiological statement for the Veteran's overall low back condition is shown in those medical records. See, e.g., May 2015 Medical Treatment Record Government Facility, pp. 39, 229 (records from May 2009 August 2013 generally linking increased lumbar pain to altered gait pattern due to hip pain). The Veteran underwent a VA examination in August 2017. The examiner confirmed diagnoses of lumbosacral disc disease and L5-S1 anterior listhesis. The examiner wrote an opinion that the Veteran's lower back condition was less likely than not incurred in or caused by his reported in-service injury. The examiner explained that the Veteran's medical records were silent for any back injury or chronic back pain. The earliest medical records showing that the Veteran reported back pain were from nearly 50 years after his discharge from the Navy. The examiner wrote that without remote x-rays from the Navy, it was impossible to state with certainty that the Veteran's listhesis was caused from his reported in-service fall, and not from a car accident prior to service, or another injury, or even a congenital problem. It was reasonable to consider that the Veteran's post-military occupations may have caused repetitive stress and strain on his spine which could have contributed to spinal arthritis. See August 2017 Compensation and Pension (C&P) Examination. The Board concludes that while the Veteran's lower back disabilities were not diagnosed during service, there has been continuity of the same symptomatology originating during service. Resolving reasonable doubt in the Veteran's favor on this material issue, the evidence is at least in equipoise that the Veteran's lower back condition originated during service with continuity of symptomatology until the present. The Veteran's present diagnoses, to include lumbosacral disc disease and L5-S1 anterior listhesis, satisfy the first Shedden prong. His report of in-service injury, such as falling while working on an airplane, satisfies the second Shedden prong. Although the VA examiner found that the Veteran's condition could not be conclusively linked to his military service, the Board finds the Veteran's lay testimony regarding continuous symptomatology to be competent and credible. This competent evidence tends to show that the Veteran's back disability was incurred coincident with his active duty service. As such, service connection for a lower back disability is warranted. 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to service connection for a left hip condition is remanded. The Veteran seeks service connection for a left hip condition, which he argues is either directly related to his reported in-service injury, or secondarily due to his lower back condition. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). For the Veteran's VA examination in August 2017, the examiner was asked to prepare opinions as to whether the Veteran's left hip condition was caused by or proximately aggravated by his lower back condition. The examiner provided an opinion that the Veteran's left hip condition was not caused by his lower back condition. However, the examiner did not address whether the Veteran's lower back condition could warrant service connection based on aggravation by another disability, as noted in Allen v. Brown. Thus, the examiner's opinion is inadequate, and a further medical opinion is necessary before the Board may reach a decision on this claim. The claim is therefore remanded for an addendum medical opinion. 2. Entitlement to an increased rating for inactive pulmonary tuberculosis is remanded. 3. Entitlement to service connection for COPD, to include as secondary to tuberculosis, is remanded. 4. Entitlement to service connection for asthma, to include as secondary to tuberculosis, is remanded. The Veteran seeks an increased rating for tuberculosis. He additionally seeks secondary service connection for COPD and/or asthma. The Veteran been service-connected for tuberculosis after that condition led to his discharge from the Navy. The condition has been evaluated as noncompensable since 1976, and is now rated as inactive pulmonary tuberculosis; minimal. In February 2012, the Veteran underwent a VA examination of his tuberculosis. The examiner wrote that the Veteran's shortness of breath and other pulmonary problems at that time were related to "severe chronic obstructive lung disease." There were no residual findings, signs or symptoms due to tuberculosis. However, the examiner did indicate that recent chest x-rays had indicated the presence of "old" granulomatous disease, which would be an expected finding for a past history of tuberculosis. See March 2012 VA Medical Treatment Records, pp. 42-46 (Tuberculosis Disability Benefits Questionnaire). Following a VA examination in March 2014, the examiner wrote an opinion that the Veteran was not diagnosed with COPD, however he was diagnosed with asthma. The examiner indicated that the Veteran's tuberculosis has been inactive since his in-service hospitalization. The examiner wrote an opinion that the Veteran's asthma was less likely than not related to or secondary to the Veteran's inactive tuberculosis, or to any other event in service. See C&P Examination, uploaded to VBMS September 2014. A review of the Veteran's medical record shows that his treating physicians, including at VA, have annotated COPD as a chronic and ongoing condition for years. Thus, the Board finds that the March 2014 VA examiner's opinion is inadequate, as it is based on an incorrect finding that the Veteran does not have a present COPD diagnosis. See Reonal v. Brown, 5 Vet. App. 458, 794 (1993) (noting that a medical opinion based upon an inaccurate factual predicate has no probative value). Moreover, because the examiner found that COPD was not diagnosed, she did not offer an etiological opinion for that condition. As such, an additional opinion is necessary to address both the Veteran's COPD and asthma. Additionally, at his hearing before the Board, the Veteran indicated that his lung conditions have worsened during his appeal. Thus, a new VA examination is necessary to evaluate the level of disability due to the Veteran's service-connected tuberculosis. The Board is mindful that the Veteran's medical record shows severely restricted breathing. The 2012 VA examiner indicated that the Veteran's current pulmonary problems are unrelated to his resolved tuberculosis. Yet, as a whole, the VA examinations of record conflict with one another, and they do not adequately describe the Veteran's disability picture sufficiently for the Board to reach a determination on these matters. These matters are REMANDED for the following actions: 1. Arrange for an addendum opinion regarding the Veteran's left hip condition. The examiner should indicate review of the complete medical record, including the Veteran's testimony at his hearing before the Board in July 2014 regarding his lower back and hip pain. The examiner is to provide an opinion addressing the following: (a.) Is it at least as likely as not (probability of about 50 percent or greater) that the Veteran's left hip condition was aggravated by his service-connected lower back condition? All opinions are to be accompanied by a thorough rationale. If any examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information / evidence, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). 2. Schedule the Veteran for a VA examination of his pulmonary conditions, including tuberculosis, COPD and asthma, to determine the present level of severity of tuberculosis, and to determine the nature and etiology of COPD, asthma, and any other identified pulmonary conditions. If the examiner determines that the Veteran does not have a present COPD and/or asthma condition, the examiner should thoroughly explain the rationale for such conclusion, and should address the conflicting opinions in prior VA examinations regarding those diagnoses. The examiner should provide answers to the following: (a.) Is it at least as likely as not (about 50 percent or greater probability) that the Veteran's COPD is secondarily caused by his service-connected tuberculosis? (b.) Is it at least as likely as not (about 50 percent or greater probability) that the Veteran's COPD has been secondarily aggravated by his service-connected tuberculosis? (c.) Is it at least as likely as not (about 50 percent or greater probability) that the Veteran's asthma is secondarily caused by his service-connected tuberculosis? (d.) Is it at least as likely as not (about 50 percent or greater probability) that the Veteran's asthma has been secondarily aggravated by his service-connected tuberculosis? (Continued on the next page) All opinions are to be accompanied by a thorough rationale. If any examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information / evidence, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, 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.