Citation Nr: 21072530 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-33 629 DATE: December 3, 2021 ORDER Entitlement to service connection for degenerative arthritis of the spine and intervertebral disc syndrome with lumbosacral radiculitis and spinal stenosis is granted. REMANDED Entitlement to service connection for residuals of a cold weather injury of the bilateral upper extremities is remanded. Entitlement to service connection for residuals of a cold weather injury of the bilateral lower extremities is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, degenerative arthritis of the spine and intervertebral disc syndrome with lumbosacral radiculitis and spinal stenosis is etiologically related to the Veteran's in-service back injury. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative arthritis of the spine and intervertebral disc syndrome with lumbosacral radiculitis and spinal stenosis have been met. 38 U.S.C. §§ 1112, 1137, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty in the United States Army from November 1956 to November 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Board remanded the issues of entitlement to service connection for bilateral hearing loss, bilateral tinnitus, a low back injury, cold weather injury of the upper extremities, and cold weather injury of the lower extremities. In April 2020 and August 2021 rating decisions, the RO granted service connection for bilateral hearing loss and bilateral tinnitus. The Veteran did not disagree with the assigned evaluations or effective dates. Therefore, this is considered a complete grant of benefits. The issues of service connection for bilateral hearing loss and bilateral tinnitus are no longer on appeal. 1. Entitlement to service connection for degenerative arthritis of the spine and intervertebral disc syndrome with lumbosacral radiculitis and spinal stenosis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Veteran is seeking service connection for a back disability. The Veteran asserts that he hurt his back while he was stationed in the Army in Greenland around 1956 or 1957. He was a supply handler or a stevedore in the Army where he was expected to lift heavy boxes. He hurt his back while he was unloading ships that would come in with supplies. The Veteran had back pain ever since service. See August 2021 VA Form 21-4138 Statement in Support of Claim, June 2016 VA Form 21-4138 Statement in Support of Claim, and July 2015 VA Form 21-4138 Statement in Support of Claim. The evidence contained in the claims file documents that part of the Veteran's service department records was damaged and destroyed by fire. See January 2013 VA Form 21-3101 Request for Information. As such, some of the Veteran's service treatment records are unavailable. As to the unavailable service treatment records, the Board recognizes that VA's duty to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule is heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Board notes, however, the law does not lower the legal standard for proving a claim for service connection, rather it increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from the missing records. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). The Veteran's DD-214 shows that his military occupational specialty (MOS) was Supply Handler. The Board finds that the Veteran's statements regarding his in-service back injury are competent, credible, and consistent with the circumstances of his service as shown by his DD-214. Thus, the Board finds that the Veteran has established an in-service event or injury. In an April 2012 statement, the Veteran's wife reported that after the Veteran returned home from the Army, he complained of his back bothering him. The Veteran later had surgery on his back. See April 2012 Buddy/Lay Statement. In April 2019, the Veteran was afforded a VA examination for his back condition. The Veteran was diagnosed with degenerative arthritis of the spine (December 2012), intervertebral disc syndrome (April 2019) and spinal stenosis (June 2013). The Veteran was also diagnosed with lumbosacral radiculitis. The VA examiner opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. There was no record of a low back injury while the Veteran was in service. Service dates were noted as November 1956 to November 1957. During this time, the Veteran was unable to describe the injury in detail or the subsequent treatment rendered following the accident. There was no record to review detailing this injury or subsequent back condition. There was a current low back condition, but there was no evidence to suggest that this occurred while in service. It was less likely than not caused by or related to military service. It was diagnosed many years after the service and service medical records reviewed were against/did not support any evidence of the low back disability or disorder. A nexus had not been established. After a thorough review of the evidence of record and taking into consideration the fact that the Veteran's service treatment records are not all available, the Board finds that the Veteran's and his wife's competent and credible statements (regarding the Veteran having back pain right after service and continually since service) and the opinion of the April 2019 VA examiner to be in relative equipoise. If the evidence, as a whole, is supportive or is in relative equipoise, then the veteran prevails. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. See also Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001). Service connection for degenerative arthritis of the spine and intervertebral disc syndrome with lumbosacral radiculitis and spinal stenosis based upon continuity of symptomatology is granted. 38 C.F.R. § 3.303(b). REASONS FOR REMAND 1. Entitlement to service connection for residuals of a cold weather injury of the bilateral upper extremities is remanded. 2. Entitlement to service connection for residuals of a cold weather injury of the bilateral lower extremities is remanded. The Veteran contends that while he was in service stationed in Greenland, he was exposed to extremely cold temperatures while he was loading and unloading cargo, which resulted in injuries to his bilateral upper and lower extremities. In January 2015, the Veteran submitted a Disability Benefits Questionnaire (DBQ) which showed that he was diagnosed with peripheral vascular disease. In an April 2019 VA examination for cold injury residuals, the VA examiner noted that the current condition that the Veteran described correlated with his history of spinal stenosis with lumbar radiculitis and his history of hallux valgus and claw toe. On his April 2019 VA examination for peripheral nerve conditions, the examiner diagnosed the Veteran with peripheral neuropathy of the upper and lower bilateral extremities. Negative medical opinions were obtained. The Board finds the April 2019 VA medical opinions to be inadequate because the conclusion relied on the absence of medical records, specifically service treatment records. Thus, a new VA addendum medical opinion must be obtained on remand to address the Veteran's lay statements regarding in-service injuries without relying on the missing service treatment records to base the opinion. The medical opinion must also address whether the Veteran's diagnosed peripheral vascular disease and/or peripheral neuropathy is related to his service-connected back disability. Also, another attempt should be made to obtain the Veteran's service treatment and military personnel records under the name listed on his DD-214 from November 1956 to November 1957. The matters are REMANDED for the following action: 1. Direct a search to the appropriate records keeping facility to obtain the Veteran's service treatment records and military personnel records from January 1956 to December 1957 using the Veteran's name listed on his DD-214. If the records cannot be located, it should be noted in the file for the record. 2. Obtain a VA addendum medical opinion to address the nature and etiology of the Veteran's cold weather residuals of the bilateral upper and lower extremities. If a medical opinion cannot be rendered without examining the Veteran, then an examination should be scheduled and performed. A copy of this remand and claims file must be reviewed. The VA examiner should consider the following: (a.) Is it at least as likely as not that the Veteran's peripheral vascular disease and bilateral upper and lower extremity peripheral neuropathy is related to his exposure to extremely cold temperatures while he was on active duty in the military? The examiner must consider and address the Veteran's reports that these injuries resulted from his exposure to extremely cold temperatures, which should be accepted as true, although not documented. (b.) Is it at least as likely as not that the Veteran's peripheral vascular disease and peripheral neuropathy of the bilateral upper and lower extremities are caused by, proximately due to, and/or aggravated by his service-connected back disability? The VA examiner should consider the fact that the April 2019 VA examiner concluded that the current condition that the Veteran described correlated with his history of spinal stenosis with lumbar radiculitis and his history of hallux valgus and claw toe. (Continued on next page) All opinions must be supported by a sufficient rationale. A negative medical opinion cannot be solely based on the absence of medical records or service treatment records. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.