Citation Nr: 21074188 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-29 132 DATE: December 14, 2021 ORDER Service connection for a low back condition is granted. REMANDED Service connection for a right lower extremity condition is remanded. Service connection for a left ankle condition is remanded. FINDING OF FACT The Veteran's low back condition had its onset in service. CONCLUSION OF LAW The criteria to establish service connection for a low back condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1958 to October 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2016 Agency of Original Jurisdiction (AOJ) rating decision issued by the Department of Veterans Affairs (VA). A Board hearing was held in October 2021. A transcript is of record. The Veteran contends that he has a low back condition that had onset in service and that his symptomatology has continued ever since. He asserts that the back problems resulted from (1) an in-service hamstring injury that caused back pain and required physical therapy and the use of a cane; (2) general impact to his body from almost 30 years of running in boots multiple times per week; (3) the physical duties of his in-service occupation that required lifting, bending, and carrying. See October 2021 Board Hearing Tr. at 3-5, 10. The Veteran's low back diagnoses of record include degenerative arthritis, degenerative disc disease, and osteopenia of the sacroiliac joints. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (listing arthritis as a chronic disease subject to presumptive service connection). The question for the Board is whether the Veteran has a current disability that is at least as likely as not related to an in-service injury or event or manifested to a compensable degree within one year of his discharge from service. See 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). First, the Board finds the preponderance of the evidence weighs against a conclusion that lumbar spine degenerative arthritis may be presumptively service connected as a chronic disease. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran has not contended, nor does the record indicate, that arthritis manifested within one year of his discharge. His service treatment records (STRs) reflect no findings of spine abnormalities at his September 1985 retirement examination and in-service complaints of back symptoms were generally assessed as muscle strain or low back pain. See April 1970 STR. Moreover, the record does not document any treatment for, or findings of, arthritis prior to a July 2007 private radiology report. However, the Board concludes that the Veteran's claimed low back condition is etiologically related to the Veteran's active service. Shedden, 381 F.3d at 1166-67. Here, a March 2016 back Disability Benefits Questionnaire (DBQ) found the Veteran's low back condition was at least as likely as not related to active service. The March 2016 examiner explained that the Veteran's service records reported treatment in August 1967 and August 1970 for complaints of low back pain and found current back pain was related to the in-service complaints. The Board notes that a May 2018 VA examiner opined that lumbar spine arthritis and osteopenia were unrelated to active service because the conditions were age-related and less likely due to an in-service muscle strain more than 20 years after separation from service. However, the Veteran and his wife testified to recurrent low back symptomatology in active service that continued and worsened in severity ever since. See October 2021 Board Hearing Tr. at 18-19. The Veteran and his wife are competent to testify to facts they personally observed, including recall of what they personally felt, saw, or heard. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds the testimony credible. As such, the Board affords little probative weight to the May 2018 medical opinion because it does not account for the Veteran and his wife's competent statements regarding his symptomatology. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight of the opinions are within the province of the adjudicator); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion.). The evidence for and against the Veteran's claim is at least in relative equipoise. The Board affords the Veteran the benefit of the doubt and finds there is expert evidence of record establishing a link between the Veteran's service and his low back condition. Accordingly, service connection for a low back condition is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Right lower extremity condition The Veteran initiated a claim for service connection for right lower extremity peripheral neuropathy. He asserts that symptoms of right lower extremity tingling and numbness have continued since an in-service injury that was characterized as a hamstring strain but resulted in ongoing low back and lower extremity pain, tingling, and numbness. See October 2021 Board Hearing Tr. at 5-8, 12. Additionally, service connection for a low back condition was granted above and the March 2016 back DBQ reported a positive straight leg raising test result for the right lower extremity. The Board finds remand is warranted to obtain a VA medical opinion that addresses all relevant evidence of record. See Layno, 6 Vet. App. at 469. The March 2016 back DBQ noted no radiating back pain, numbness, or tingling into the legs but provided a positive straight leg raising test result for the right leg. The VA clinician did not provide an opinion or any other findings regarding whether the Veteran has a right leg condition manifested by tinging or numbness related to his low back disability. The May 2018 back DBQ similarly found the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. In addition, a March 2016 muscle injury DBQ determined that an in-service hamstring strain resolved, and the VA clinician opined that there were no current residuals of the hamstring injury. The VA clinicians have not considered the Veteran's statements regarding his in-service injury and onset of his symptoms in the lower extremities. Id.; see also Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (pain alone can constitute a disability if it causes functional impairment of earning capacity); Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 398 (2020) (the Saunders holding is not limited to pain and applies in any case implicating the definition of disability in 38 U.S.C. § 1110). Remand for another medical opinion is warranted. 2. Left ankle condition The Veteran contends that his symptoms of left ankle soreness, pain, and limitation of motion began in active service due to intensive physical training and activity required by his military occupation. See Board Hearing Tr., 13-14. He reported the symptoms continued ever since he retired from military service. STRs note August 1978 and October 1978 treatment for complaints of left ankle pain that lasted several weeks and increased with running and jogging; upon examination, evidence of ankle swelling was observed. Results of a September 1978 X-ray report revealed a small exostosis on the left navicular bone. The Board finds remand is warranted to obtain a VA medical opinion that addresses all relevant evidence of record. See Layno, 6 Vet. App. at 469. A March 2016 ankle conditions DBQ diagnosed residuals of a left ankle fracture related to a 1995 motorcycle accident and the VA clinician opined that the left ankle condition was not related to service because his current symptoms were due to residuals of the 1995 ankle fracture. The VA medical opinion noted in-service treatment for ankle complaints but did not address for the Veteran's statements regarding onset of left ankle symptoms that continued since his retirement. Id. Remand for another medical opinion is warranted. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for right lower extremity tingling and numbness and a left ankle condition that are not already of record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified. 2. After completing the directive above, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's right lower extremity condition and left ankle condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. It is up to the discretion of the reviewing clinician as to whether new examination(s) is/are necessary to provide an adequate opinion. After the record review and examination of the Veteran (if deemed necessary by the reviewing clinician), the reviewing clinician must opine on: (a.) Whether it is at least as likely as not that the Veteran's right lower extremity symptoms of tingling and numbness are (1) related to an in-service injury, event, or disease; (2) proximately due to service-connected low back condition; (3) aggravated beyond its natural progression by his service-connected low back condition. (b.) Whether it is at least as likely as not that the Veteran's left ankle condition was incurred in active service or otherwise related to an in-service injury, event, or disease. The reviewing clinician is advised that the Veteran is competent to report his symptoms and history, such as onset of lower extremity tingling and numbness and left ankle pain, swelling, and limited range of motion in service. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is also advised that a finding that a right lower extremity condition manifested by tingling and numbness was aggravated beyond the normal progression due to a low back condition may encompass any additional incremental increase in disability resulting from the low back condition regardless of its permanence. If an opinion cannot be provided without resorting to speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the directives to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Odya-Weis 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.