Citation Nr: 21074073 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-62 294 DATE: December 14, 2021 ORDER Entitlement to service connection for lumbar degenerative disc disease and degenerative arthritis (low back condition) is granted. REMANDED Entitlement to service connection for a bilateral foot condition to include plantar fasciitis is remanded. FINDING OF FACT The Veteran's lower back condition is etiologically related to her military service. CONCLUSION OF LAW The criteria for entitlement to service connection for lumbar degenerative disc disease and degenerative arthritis (low back condition) have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the U.S. Navy from March 1991 to March 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In September 2019, the Veteran had a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Board notes that there is a request related to obtaining the curriculum vitae and qualifications of the October 2020 VA examiner. Providing such would require remand for AOJ action; in light of the favorable finding below, there is no prejudice to the Veteran in adjudicating the claim without provision of such. Service Connection 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(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The Veteran contends that her low back condition was related to her military service, to include motor vehicle accidents (MVA) during her service. Service treatment records (STRs) documented that the Veteran was seen and treated for chronic pain, stains, and spasms in her lower back. A February 1992 treatment note documented that the Veteran complained of low back pain after an MVA. She was diagnosed with a lumbar strain. A Febraury1993 treatment note documented that Veteran had back pain complaints. Post-service treatment records reflected treatment for back pain. The Veteran was diagnosed with degenerative disease of the lumbosacral spine in 2015. On November 2016 VA Form 9, she wrote that she felt her back condition started while in-service. She noted that she had two car accidents in-service and climbing ladders took a toll on her body. She wrote that she had been going to a chiropractor since her separation from service. The Veteran indicated that she was going to Dr. S and Dr. G after service. She noted that they both were retired, and she would try to find out how she could retrieve her records. In September 2019, the Veteran testified that she saw her chiropractor in 1993 and again from 1995 to 2011. She indicated that her chiropractor was retired, and she was not able to get her records. She noted that she was seen by Dr. S from 2012 to 2019. She indicated that was going for acupuncture since 2017. In October 2020, the Veteran was afforded a VA back condition examination. The Veteran was diagnosed with degenerative arthritis of the spine. The Veteran indicated that her condition started in 1991. She reported that her back pain developed after being involved in a MVA during service. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran's service records noted complaints of back pain in September 1992, November 1992, and February 1993. The Veteran was evaluated by orthopedics in November 1992 and was diagnosed with low back pain syndrome. The Veteran was involved in two MVAs, while in-service in September 1992 and February 1993. The examiner concluded that there was no evidence of recurring back pain in the decade after her separation and her current claimed lumbar degenerative disc disease and degenerative arthritis, was less likely than not the result of back pain during service. The Board notes that the previous November 2019 remand asked the examiner to address the Veteran's contentions (to include strains, chronic pain, and spasms) and in-service complaints. The Board notes that the October 2020 examiner did not address the Veteran's contentions and in rendering the opinion did not account for the Veteran's lay contentions of ongoing back symptomatology since her military service. The examiner did not provide an adequate explanation for discounting the Veteran's competent and credible reports of having chronic back pain. As such the Board finds that the October 2020 is inadequate. Based upon the competent and credible statements of the Veteran the Board acknowledges that the Veteran was injured while in-service, which has been consistent with the Veteran's lay statements and documented in STRs. The evidence above demonstrates that the Veteran entered service without any back issues. STRs included several notations that the Veteran complained of back pain. The Veteran competently and credibly stated that she injured her back in-service and continued to have symptoms of low back pain; this is generally supported by medical evidence of record. The competent and credible evidence of record shows continuity of the signs and symptoms of low back problems now clearly associated with arthritis. The Veteran's low back condition originated during service. Accordingly, service connection for a low back condition, diagnosed as degenerative arthritis of the lumbar spine, is warranted. REASONS FOR REMAND In September 2021 written brief presentation, the Veteran's representative challenged the competency of the medical examiner from the October 2020 VA examination. On July 23, 2019, the United States Court of Appeals for the Federal Circuit issued a panel decision in Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019), affirming the decision of the United States Court of Appeals for Veterans Claims which found that when a challenge to the competency of the medical examiner is raised, the Board must make a factual finding as to whether the medical examiner is competent. The Court held that the challenge must be more than a general assertion that an examination or opinion is inadequate and must be raised by the Veteran in the first instance. A challenge raised under the above circumstances rebuts the presumption of competency and VA must satisfy its burden of persuasion as to the examiner's qualifications by providing the Veteran with information about the qualifications of the examiner. Here, the allegations regarding competence raised in the September 2021 written brief presentation specifically challenge the competency of the VA examiner, which meets the Francway criteria. However, the challenge is dependent on obtaining and reviewing the curricula vitae of the examiners. Accordingly, on remand, appropriate actions must be undertaken in order to obtain the curriculum vitae of Nurse Practitioner JA. Further, through her representative, the Veteran has submitted studies and medical articles that indicate that her right foot condition could be related to her service and her now service-connected back condition. Remand is required for an examination and medical opinion which consider the facts of the Veteran's individual case against the studies and medical articles submitted. The matters are REMANDED for the following action: 1. Appropriate action must be taken to respond to the requests from the representative for copies of the curriculum vitae for the VA examiner (JA) who conducted the October 2020 VA examination. 2. Schedule the Veteran for a VA foot examination. The claims folder must be reviewed in conjunction with the examination. The examiner must identify all current disabilities of the left and right feet, and for each must opine as to whether such is at least as likely as not caused or aggravated by service or a service-connected disability. The role, if any, of an in-service ankle injury must be discussed. The examiner is asked to address the medical articles and studies listed in the September 2021 written brief presentation. A full and complete rationale for all opinions rendered is required. 3. Thereafter, readjudicate the remanded issue. If the benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.