Citation Nr: 21074060 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-57 899 DATE: December 14, 2021 ORDER Entitlement to service connection for lumber spine degenerative arthritis is granted. REMANDED Entitlement to service connection for a left hip disability is remanded. FINDING OF FACT After resolving reasonable doubt in the Veteran's favor, his lumber spine degenerative arthritis is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for lumber spine degenerative arthritis have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1970 to November 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA). This case was remanded in December 2020, April 2021, and July 2021 for further development. In December 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Entitlement to service connection for a lumbar spine disability. Service connection may be established 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. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). The burden falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that an injury or disease manifested in service was both preexisting and not aggravated by service. See 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.Cir.2004). Clear and unmistakable evidence means that the evidence cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Clear and unmistakable evidence can consist of the veteran's own admissions of a preservice disability. Horn v. Shinseki, 25 Vet. App. 231, 237 (2012). If there is clear and unmistakable evidence to show that the veteran's disability was both preexisting and not aggravated by service, then the veteran is not entitled to service-connected benefits for the preexisting condition. Wagner, 370 F.3d at 1096. The Veteran is currently diagnosed with lumbar spine degenerative arthritis. See, e.g., May 2021 VA examination. Service treatment records (STRs) reflect numerous reports of lumbar spine pain, see, e.g., June 1975 STRs, and the Veteran reported recurrent back pain since 1972 in his September 1976 separation medical exam. He testified that his back pain continued to bother him after service until it progressed to the point where he was diagnosed with a back disability. See December 2020 Board hearing. The Veteran is competent to report continued back pain since service. Moreover, the undersigned had the opportunity to observe the Veteran during his hearing and finds his testimony credible. Thus, the Board finds that the Veteran injured his back during service and had continued pain since that time. This matter has been remanded three times, all for new VA medical opinions that considered the Veteran's report of back pain since service. All the medical opinions received do not consider the Veteran's lay statements, including new VA addendum opinions from the May 2021 VA examiner received in August 2021 and September 2021. Moreover, in the September 2021 VA medical opinion, the examiner asserted that the Veteran had pre-existing back pain. The Veteran's entrance medical examination was normal; even though he reported minor back pain on his entrance report of medical history, such is not considered to be a "noted" disability nor is there clear and unmistakable evidence that the Veteran's disability pre-dated service. Thus, the Veteran is presumed sound upon entering service and the September 2021 VA opinion was based on an inaccurate factual premise. For these reasons, the new August 2021 and September 2021 VA medical opinions are inadequate and given no probative weight. Currently, the only probative evidence of record reflects that the Veteran had repeated back pain in service with ongoing pain since that time. Any opinion by a VA examiner regarding causation would need to rely on the Veteran's credible lay statements that his back pain continued since service, as was requested by the Board numerous times and for which the examiners failed to do in this case. After resolving reasonable doubt in his favor and based on the circumstances of this casethe conceded in-service event and continued pain, the absence of post-service injuries, and the lack of a reasonable basis to believe that additional development could alter the approximate balance of evidencethe Board finds that service connection for lumbar spine degenerative arthritis is warranted. REASONS FOR REMAND Entitlement to service connection for a left hip disability. October 1974 STRs reflect left hip pain and the Veteran was diagnosed with left thigh strain. During his December 2020 Board hearing, the Veteran testified about getting treatment for his back and "associated" left hip pain. He also testified that his left hip pain prevents him from walking and sitting for long periods of time. Pain with functional impairment is considered a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). In September 2021, the May 2021 VA examiner merely opined that there are no signs, symptoms, evaluations, therapies, treatments, or diagnoses for the Veteran's left hip and, thus, the left thigh strain in service resolved. This opinion is inadequate because it did not consider the Veteran's report of left hip pain with functional impairment. Thus, remand for a new examination and opinion regarding direct service connection is necessary. Because the Veteran's lumbar spine disability is now service-connected and because he testified that the disabilities were associated with one another, remand for a secondary service connection opinion is necessary as well. The matter is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from July 2021 to the present. 2. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any left hip disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) For the Veteran's left hip pain with functional impairment, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran's service-connected lumbar spine arthritis? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. (b.) For the Veteran's left hip pain with functional impairment, is it at least as likely as not (50% or greater probability) that the disability was either incurred in or otherwise related to the Veteran's active duty service? Please explain why. The examiner may not solely rely on an absence of evidence in STRs or treatment records immediately after service. 3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.