Citation Nr: 21076922 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-28 534A DATE: December 28, 2021 ORDER Entitlement to service connection for lumbar degenerative disc disease and lumbar disc bulging is granted. REMANDED Entitlement to an initial compensable rating for chronic cough (claimed as respiratory condition) is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's low back disability is related to service. CONCLUSION OF LAW The criteria for service connection for lumbar degenerative disc disease and lumbar disc bulging have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1995 to February 1996, from October 2004 to January 2006, and from March 2011 to April 2012. This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, granted service connection for chronic cough (claimed as respiratory condition) and assigned a noncompensable rating, effective January 30, 2014. The RO also denied service connection for lower back pain (claimed as lumbar spine condition). The Veteran disagreed with the RO's determination, and a statement of the case (SOC) was issued in May 2018 addressing the matter. The Veteran timely appealed. In August 2021, the Veteran testified during a virtual Board hearing before the undersigned VLJ. A copy of the transcript has been associated with the record. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in the active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Low Back In this case, the evidence of record demonstrates that the requirement for a current disability has been met. Specifically, a May 2018 VA examination report shows diagnoses of lumbar degenerative disc disease, and lumbar disc bulging. Thus, the first element of service connection has been met. The evidence of record indicates that an in-service disease requirement has been met. The Veteran's May 1995 enlistment examination shows his spine was noted as normal. Service treatment records (STRs) includes a November 2005 Post-Deployment Health Assessment, on which the Veteran reported back pain during deployment. In March 2011, the Veteran reported having low back pain since 2005. In March 2012, the Veteran reported having low back pain in 2005, then going to a chiropractor and getting better; then his back became worse while on deployment. At his August 2021 Board hearing, the Veteran testified that his back symptoms started in 2005, while deployed in Iraq, then he started going to a chiropractor after deployment. He noted that he did not have back symptoms prior to his first deployment and has experienced back symptoms since deployment. The Veteran's service records indicate he served in Iraq from January 3, 2005 to December 13, 2005, and in Afghanistan from May 23, 2011 to April 20, 2012. Here, the STRs and competent and credible lay statements from the Veteran demonstrates he exhibited symptoms during service. This is sufficient to meet the second element of service connection. The Veteran was afforded a VA examination in May 2015. The examiner opined that the Veteran's back condition was less likely than not incurred in or caused by active military serve. The examiner's rationale was the Veteran reports lower back pain first started around 2003, which does not correlate to his periods of active duty. In a May 2018 VA examination report, the examiner opined that the Veteran's back condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained the Veteran was seen in April 2006 several times for low back pain. Then, between 2012 and 2014, he was again evaluated multiple times for low back pain. The examiner further explained that around this time, he had negative lumbar x-ray and eventually underwent an MRI which showed degenerative disc disease and a herniated disc. The examiner noted that during a visit for low back pain in August 2014, the Veteran reported since the onset, back pain has been constant without any radiculopathy symptoms. The examiner further noted the current symptoms are consistent with reported symptoms in the VA treatment records, and medical records did not demonstrate progression of Veteran's low back condition. The examiner concluded that based on medical records, Veteran's low back condition is less likely than not aggravated by service In this case, the Board finds the May 2015 VA opinion of no probative value, because it is factually inaccurate, as the STRs indicates that in November 2005, March 2011, and March 2012, the Veteran reported the onset of his low back symptoms was in 2005, during his first deployment. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (if the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). The Board further finds the May 2018 VA opinion is also of little probative value. Specifically, every Veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. As noted above, at the Veteran's May 1995 enlistment examination, his spine evaluation was noted as normal. Thus, the Veteran was presumed sound when he entered service and that presumption can only be rebutted with clear and unmistakable evidence of both preexistence and lack of aggravation. There is no evidence of lack of aggravation in this case. Moreover, both the May 2015 and May 2018 VA examiners failed to consider the Veteran's competent and credible statements of the onset of back symptoms while on active duty, and the continuation of symptoms in the years since service. At this point, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). The current diagnosis, STRs, the Veteran's competent and credible lay statements of back symptoms in and since service, are sufficient to establish that the Veteran's back disability is related to service. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself). For the reasons set forth above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's back disability is related service. Thus, resolving reasonable doubt in the Veteran's favor, service connection is warranted for lumbar degenerative disc disease and lumbar disc bulging. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REMAND 2. Chronic Cough At the August 2021 Board hearing, the Veteran testified that he has an inhaler that he uses on occasion for his chronic cough disability. The Veteran was last afforded a VA medical examination in connection with this claim in May 2018. As it appears that the severity of the Veteran's service-connected chronic cough disability may have materially changed since he was last examined for VA compensation purposes, an additional VA medical examination is necessary to ensure that the Veteran's disability is appropriately evaluated. 38 C.F.R. § 3.327(a) (2018) ("Generally, reexaminations will be required if... evidence indicates there has been a material change in a disability or that the current rating may be incorrect"). The matter is REMANDED for the following action: Schedule the Veteran for an appropriate VA examination, to include via telehealth if warranted, to determine the severity of his service-connected chronic cough disability. The claims file must be reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.