Citation Nr: 21071712 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-11 280 DATE: December 1, 2021 ORDER Entitlement to service connection for lumbar strain with degenerative arthritis (previously claimed as back injury) is granted. REMANDED Entitlement to a total disability evaluation due to individual unemployability (TDIU) is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, her lumbar strain is at least as likely as not related to her lower back injury when she attempted to catch a 400 plus pound patient in performance her duties as medic. CONCLUSION OF LAW The criteria for service connection for lumbar strain with degenerative arthritis (previously claimed as back injury) have been 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 had active service from September 1969 to September 1989. In November 2004 the Veteran filed a claim for service connection lumbar strain with degenerative arthritis (Previously rated as back injury). In a March 2005 the Agency of Original Jurisdiction (AOJ) denied the claim and the decision became final. In August 2014, VA 21-526EZ, the Veteran requested that her claim for compensation her lower back be reopen. In February 2015 Rating Decision (RD) the Regional Office (RO) Des Moines, Iowa, granted the Veteran's requests and reopened for service connection for lumbar strain but denied Veteran's claim that her lumbar strain was service-connected. In March 2015 the Veteran filed a Notice of Disagreement (NOD). In March 2016, the Veteran filed her Form 9, an appeal to the Board for his lumbar strain claim. In September 2016 the Veteran filed a claim for compensation for a total disability rating due to individual unemployability (TDIU) based on back injury. In an April 2017 Rating Decision, the RO denied the Veteran's claim for TDIU. In June 2020 Supplemental Statement of the Case (SSOC) the Regional Office (RO) denied Veteran's claim for service connection lumbar strain and TDIU. In July 2021, the Veteran testified at a hearing held before the undersigned Veterans Law Judge and a transcript of that hearing has been associated with the electronic record. During the Board hearing, the Veteran did not seek a claim of TDIU in connection with her service-connected hysterectomy. Entitlement to service connection for lumbar strain with degenerative arthritis (previously claimed as back injury). The Veteran asserts that her lumbar strain with degenerative arthritis (previously claimed as back injury) is etiologically related to injuries sustained during her active service. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In an August 2014 Service Treatment Record (STR), reports that the Veteran was admitted to DeWitt Army Hospital, Ft Belvoir, VA for a back ligament strain caused by a car accident. In an August 2019 STR the medical examiner noted that in October 1991 the Veteran complained of chronic lower back pain and requested physical therapy. The report of a March 2019 VA examination shows the Veteran has a current diagnosis of lumbar strain disability. During service, the Veteran was seen for complaints of lower back pain. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. In February 2015 VA examination, VA examiner opined that the veteran was diagnosed as having a lumbar sprain while in service stating that she now has degenerative disc disease, which is a degenerative condition. As people age, bone strength and muscle elasticity and tone tend to decrease. The discs begin to lose fluid and flexibility, which decreases their ability to cushion the vertebrae. The VA examiner opined that the Veteran's degenerative disc disease of the lumbar spine is less likely as not a result of the veteran's lumbar sprain while in service. The evidence in favor of the claim includes the April 2016 VA examiner who opined that the Veteran's medical records documented that she complained of chronic back pain throughout her military active service and that she was treated in January 1983 for lower back syndrome. Contrary to the February 2015 VA examiner's opinion above, this VA examiner states that "there are inconsistencies as to when the actual onset of this condition began." The examiner recognized that inconsistencies exist regarding onset date, each date stated was after her entry into service. As a result, the VA examiner opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury. Additionally, in a July 2018 VA examination, the VA examiner diagnosis the Veteran with degenerative disc disease. The VA examiner noted that the Veteran had back pain since 1972 and that the pain has gradually worsen. That Veteran has flare-ups when lifting patients and she suffers from functional loss or impairment (unable to stand for prolong periods). The VA examiner also conducted a range of motion (ROM) test and reported that the Veteran has poor ROM and has lower back pain with ROM. The VA examiner also noted that the Veteran uses an assertive device as a normal mode of locomotion. The VA examiner opined that the Veteran has advanced degenerative disease, degenerative end plate changes and spondylosis at the L4-L5 level, also noting that she has limitation of activity, she unable to stand prolong periods of time and she is unable to cook as much as usual due to difficulty standing. Finally, the VA examiner opined that it is likely military service as a result of the Veteran's back pain due to carrying heavy equipment, serving as a medic and strained her back while lifting patients off gurneys in military hospitals. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current lumbar strain arose in-service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for lumbar strain is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a total disability evaluation due to individual unemployability (TDIU). The Veteran has asserted that she is unable to work due to her claimed lumbar strain with degenerative arthritis. The grant of service connection is intertwined with the TDIU issue. The Board may not review the TDIU issue until VA implements the grant above. Lastly, the Veteran underwent a VA back examination in March 2019 and a VA hysterectomy examination in January 2005. The Board finds that a remand is also required to afford the Veteran contemporaneous VA examinations to determine the current severity of her service-connected disabilities. The matters are REMANDED for the following action: 1. Implement the grant of service connection above. Determine what, if any, additional development is needed regarding the TDIU issue and then readjudicate it. 2. Schedule the Veteran for examinations by appropriate clinicians regarding the current severity of her lumbar strain with degenerative arthritis and residual of hysterectomy alleged as causing unemployability. The examiner should elicit from the Veteran her complete educational, vocational, and employment history and should note her complaints regarding the impact of lumbar strain with degenerative arthritis on employment and residual of hysterectomy. The examiner should identify all limitations or functional impairment caused by her service-connected lumbar strain with degenerative arthritis and hysterectomy disabilities. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Le, Tai D. 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.