Citation Nr: 21077314 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 13-06 336 DATE: December 29, 2021 ORDER Service connection for a back disability, to include osteoarthritis/degenerative disc disease, is granted. FINDING OF FACT The Veteran's back disability, to include osteoarthritis/degenerative disc disease, had its onset in service and is otherwise is related to his active military service aboard a U.S. naval vessel. CONCLUSION OF LAW The criteria for service connection for back disability, to include osteoarthritis/degenerative disc disease, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1969 until his honorable discharge in March 1971. This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from a 2011 decision by the Jackson, Mississippi, Regional Office of the United States Department of Veterans Affairs (VA). In July 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. This case has a long procedural history. It suffices to say that the Board initially denied service connection December 2016. In September 2017, the United States Court of Appeals for Veterans Claims (Court), based on joint motion for remand, vacated the Board's decision and remanded the case to the Board for readjudication. The Board subsequently remanded the claim to the VA Regional Office for further development in March 2018, September 2019, and November 2020. The case now returns to the Board from the VA Regional Office for readjudication. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that 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). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Analysis First element: A current disability Most recently, the Board directed the VA Regional Office to obtain a VA examination in which the examiner was asked to identify all back disabilities that the Veteran has experienced throughout the pendency of his clam. In September 2021, A VA-contracted examiner diagnosed the Veteran with the following back disabilities as of the associated dates: (1) degenerative arthritis (9/8/2021); (2) degenerative disc disease other than intervertebral disc syndrome (9/8/2021); (3) right lower radiculopathy (9/8/2021); (4) lumbosacral surgery (2005), resulting in scarring. The Board also observes the Veteran had reduced range of motion in his back with pain. Saunders v. Wilkie, 886 F.3d 1356 (2018) (pain alone can qualify as a disability where it diminishes the body's ability to function under the ordinary conditions of daily life including employment, even where it is not diagnosed as connected to a current underlying condition). The Board finds the first element is satisfied as the Veteran has degenerative arthritis/degenerative disc disease of the back. The Board notes that because it is awarding service connection, the Veteran's back surgery is not itself a disability, but rather the residuals of the surgery are disabilities if the surgery was necessitated by the initial service-connected back disability. Furthermore, the Veteran's radiculopathy, which is associated with his back disability, will be rated according to 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) ("Evaluate any associated objective neurologic abnormalities . . . separately, under an appropriate diagnostic code."). A separate analysis is not warranted for either of these issues. Second element: An in-service event, injury, or illness, or aggravation thereof The Veteran has consistently asserted that when he was stationed aboard the U.S.S. Ponchatoula in 1969, he suffered a back injury due to the vessel colliding with another U.S. naval ship. The Board instructed the VA Regional Office to develop whether the U.S.S. Ponchatoula had any collisions in 1969. The VA Regional Office conducted the development, retrieving the vessel's deck logs, which showed that the only collision occurred in February 1970. This event was also recorded in Neptune Papers of Naval Accidents between 1945 and 1988, authored by Greenpeace/Institute for Policy Studies, which is of record. There is no evidence of a collision involving the U.S.S. Ponchatoula in 1969, as claimed by the Veteran. Nevertheless, the Veteran submitted a lay statement in February 2021 from a fellow serviceman, R.F., who stated that he served with the Veteran aboard the U.S.S. Ponchatoula. He indicated he worked with the Veteran while in dry dock and at sea aboard the vessel. He described an incident that occurred during a refueling mission where the U.S.S. Point Defiance collided with the U.S.S. Ponchatoula. Importantly, the U.S.S. Point Defiance was the vessel identified in the deck logs regarding the collision with the U.S.S. Ponchatoula in February 1970. Based on the evidence of record, the Board finds that the Veteran's assertion that he experienced a collision in 1969 while aboard the U.S.S. Ponchatoula was inaccurate. The Board finds this inaccuracy was due to a misrecollection of dates rather than intentional deceit. The credible lay statement submitted by the Veteran's fellow serviceman confirms the Veteran's presence aboard the U.S.S. Ponchatoula when it collided with the U.S.S. Point Defiance, and this event is documented in the vessel's deck logs. Therefore, the Board finds the evidence of record establishes an in-service event that the Veteran asserts resulted in a back injury. Thus, the second element is satisfied. Third element: A causal link The Board has remanded this case multiple times in hopes of obtaining an adequate VA medical opinion. At this time, on thorough and thoughtful review of the entire record, the Board finds the initial opinion offered by a VA-contracted examiner on September 28, 2021, which was a positive nexus opinion, is the most probative of all opinions of record. Although that examiner offered an addendum opinion at the request of the VA Regional Office in October 2021, which resulted in a negative nexus opinion, for the reasons to be discussed, the Board finds that opinion has no probative value. The September 2021 examiner opined that the Veteran's back degenerative arthritis/degenerate disc disease was at least as likely as not incurred in service as it was a chronic condition. The examiner documented that she carefully reviewed the Veteran's electronic claims folder. She noted that a private care treatment note, dated November 2003, described the Veteran's past medical history and included osteoarthritis of the lower back and a history of lumbosacral surgery; and a February 2005 private care note indicated chronic low back pain secondary to lumbosacral disc disease, status post-surgery. She considered the Veteran's account of a broadside ship collision aboard the U.S.S. Ponchatoula and the resulting injury that occurred, as stated in his December 2017 correspondence. Based on all relevant evidence, she concluded that the Veteran's back disability was chronic and recurrent, and it had an onset while the veteran was in service. The VA Regional Office requested an addendum opinion because it believed the VA examiner had overlooked relevant evidence. It requested the VA examiner "review evidence as medical records do not support onset as reported for 20 years." The examiner changed her opinion on subsequent review of the evidence, adding only the following information to her initial opinion: (1) "STRs 6/8/10 reports low back pain from basketball in 12/70 with no further complaint/tx"; (2) "separation exam 1971 no back complaint"; (3) "PMRs 6/23/10 recurrent herniated disc has surge 1995 SSA records 12/31/12 reports onset of back pain 1991"; (4) "6/23/21 deck logs show collision (page 2) on 2/13/70." The Board finds that the examiner did not explain the significance of any of the information that was added. The added information are merely restatements of facts of record. Furthermore, the examiner appears to have based her addendum opinion on the inaccurate date reported by the Veteran of the ship collision; hence, she assumed he was not aboard the ship during the collision. Notably, the Board has already determined that the Veteran was aboard the U.S.S. Ponchatoula when it collided with another vessel, and the Veteran merely misrecalled the date on which it occurred. Therefore, the Board finds the addendum opinion has no probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion."). In conclusion, the most probative medical opinion of record is the September 2021 VA-contracted examiner's positive nexus opinion, which establishes that the Veteran's back disability had its onset in service. The Veteran's back disability has been continuous since service, which demonstrates a continuity of symptoms such that his current condition is related to his active service. Therefore, the third element is satisfied and service connection for a back disability is warranted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, Associate 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.