Citation Nr: 21077473 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-53 789 DATE: December 29, 2021 ORDER Entitlement to service connection for a back condition, to include degenerative changes, is granted. REMANDED Entitlement to service connection for headaches is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his low back disability, to include degenerative changes, is at least as likely as not related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back condition have been met. 38 U.S.C. §§ 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Army from January 1999 to May 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2014 and January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ) in January 2021. A written transcript of the hearing has been prepared and is associated with the claims file. Service Connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specified chronic diseases when shown in service with subsequent manifestations at a later date, however remote, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.307. Some chronic diseases are subject to presumptive service connection, although, not otherwise established as incurred or aggravated by service if manifest to a compensable degree, within an applicable time limit, provided that the rebuttable presumptive provisions of § 3.307 are also satisfied. See also 38 C.F.R. §§ 3.303, 3.309. Alternatively, to show a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Entitlement to service connection for a back condition is granted. The Veteran contends that he is entitled to service connection for a low back disability, that began during service and has continued since service. The Veteran testified that he injured his back in service from various parachute jumps. In particular, he believed he was injured during a parachute jump in March of 2003. He testified that part of his duties included maintaining Airborne qualification and he had regular parachute jumps for that purpose. He also had parachute jumps while overseas and he had to carry equipment while jumping. The Veteran testified that he hurt himself during a combat jump and treated his back pain while deployed with ibuprofen. The Veteran explained that his deployment ended prematurely when he was injured from a gunshot wound to the arm, after which he was on various pain medications. The Veteran reported he had one x-ray of his back during service but that he was told the x-ray did not show anything significant. However, his pain continued after service and eventually he was told his x-rays reflected deterioration. The Veteran has had treatment for low back pain. He also has imaging showing degenerative disc disease in the lumbar spine. See Medical Treatment Record Non-Government Facility received July 2016. Therefore, the Board concludes that the Veteran has a current disability. The evidence also supports a finding of in-service injury to the back. The Veteran's Report of Medical History dated in September 2004 stated that he reported recurrent pain or back problems, described as low back pain. See STR received March 2006. The Veteran's military records also documented that he was awarded the parachutist badge and that he had orders to serve in the parachute infantry while at Fort Benning. See DPRIS Response received June 2016. The records also noted that the Veteran was in the Airborne Infantry Regiment in August 2000. Id. The Veteran competently, credibly, and consistently stated that as a result of his duties he injured his back during service. The Board finds that the Veteran's statements are credible, as they are consistent with the verified circumstances of his service. 38 U.S.C. § 1154(a). Therefore, an in-service event is clearly supported by the Veteran's service records. Lastly, the Board finds that the Veteran competently and credibly reported chronic, continuous low back pain since service. The nature, onset, and course of his low back pain are capable of being identified by the Veteran as a lay witness. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For example, as noted above he reported low back pain during separation from service. See STR received March 2006. Moreover, in June 2010, the Veteran told the VA medical provider that he had injured his back from years as a paratrooper and also after service he was in a motor vehicle accident. See CAPRI received May 2013. The VA provider stated that at that time they suspected spinal arthritis. Id. Since at least 2010, the Veteran's VA treatment and private treatment records documented that the Veteran had chronic low back pain. The Veteran also testified at the hearing that he has had low back pain since service, which has gotten worse over time. See Hearing Transcript received January 2021. The VA examiner in May 2014 noted that there were no military medical records for review in the Veteran's file. See VA examination received May 2014. Then in November 2019, another opinion was obtained. The November 2019 examiner stated that the claimed condition was less likely than not incurred in or caused by the claimed in service injury, event, or illness. The examiner's rationale stated that the report of medical history and examination on September 2004 for separation from service did not reveal history or physical examination findings for ongoing acute or chronic treatment of low back pain. However, as discussed above, the Report of Medical History from separation from service did note complaints of recurrent low back pain, which was not discussed by the examiner. The Veteran is competent to report symptoms like pain. See 38 C.F.R. § 3.159(a)(2); and see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The examiner did not adequately address the Veteran's competent, consistent, and credible statements indicating a continuity of symptomatology since active duty service. In sum, the evidence of record supported that the Veteran's low back disability occurred in active duty service. While the November 2019 VA opinion did not find evidence of a causal link ("nexus") to service, the Board finds that the November 2019 VA opinion did not address relevant and favorable evidence that the Veteran reported back pain during separation from service and failed to consider the relevant lay statements. Therefore, the Board finds that the available VA medical opinions are inadequate. The Board finds that the evidence is at least in equipoise as to whether the Veteran's current low back disability occurred in service. Accordingly, resolving the benefit of the doubt in the Veteran's favor, the Board finds that service connection for a low back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for headaches is remanded. Although further delay is regrettable, a remand is necessary for an adequate VA opinion. The Board finds that the VA opinions offered in August 2016 and October 2016, as to the Veteran's tension headaches, are inadequate on their face for VA purposes. When an opinion does not express the right degree of certainty, does not provide a rationale, is conclusory, does not consider all of the relevant evidence of record including lay statements, or does not consider all raised theories of entitlement then the examination is inadequate. Steff v. Nicholson, 21 Vet. App. 120 (2007); Bloom v. West, 12 Vet. App. 185, 187 (1999); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Combee v. Brown, 34 F.3rd1039, 1043-44 (Fed. Cir. 1994). In August 2016, the Veteran had a Gulf War General Medical Examination. The examiner considered whether the Veteran's headaches were related to service in the Gulf War. The August 2016 VA examiner noted that he believed that the Veteran's headaches symptoms were "exacerbated" by his diagnosed PTSD and bipolar disorder. See C&P Exam received August 2016. At that time, the examiner opined that the Veteran's condition was less likely than not incurred in or caused by the Veteran's service in the Gulf War because the Veteran did not have an undiagnosed illness, a diagnoseable but medical unexplained chronic multi-symptom illness of unknown etiology, or a diagnoseable chronic multi-symptom illness with a partially explained etiology. Id. Then in October 2016, the same examiner provided some additional opinions that the claimed condition was less likely than not incurred in or caused by the claimed in service injury, event, or illness and that the condition was not aggravated by the Veteran's service-connected PTSD condition. See C&P Exam received October 2016. The examiner stated that the Veteran had only one mention of headaches in service. However, the Board noted that the Veteran's service records mentioned headaches more than one time. Moreover, in August 2004 the medical evaluation board summary reported that the Veteran had occasional headaches for the past four months. See STR-Medical received March 2006. Additionally, in the Report of Medical History, at separation, the Veteran noted that he had frequent or severe headaches. Id. The Board finds the opinions in August 2016 and October 2016 are inadequate. The opinion from August 2016 conflicts with the opinion from October 2016, even though both opinions appeared to be provided by the same doctor. Specifically, the August 2016 opinion suggested that the Veteran's symptoms of headaches were due to his service-connected PTSD and the October 2016 opinion opined that the Veteran's headaches were not aggravated by his service-connected PTSD. The Board also noted that the opinions failed to consider all the evidence, and also failed to consider all necessary theories of entitlement. As noted, the Veteran did report headaches during service, and a medical report noted that the Veteran had headaches during four months of service. Also, the opinions failed to consider whether the Veteran's headaches were caused by his PTSD, as they only addressed whether the Veteran's headaches were aggravated by his PTSD. Upon remand an addendum opinion is to be provided which addresses the claim of secondary service connection based on the Veteran's service-connected PTSD and direct service connection, considering his headaches during service. The matters are REMANDED for the following action: 1. Update all VA treatment records, and relevant private treatment records as deemed necessary. 2. After completing the above development, request a VA medical opinion, by a different VA provider than the last, if possible, with the appropriate training and expertise to determine the nature and etiology of the Veteran's headaches. Following review of the claims file, the examiner should answer the following questions: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's headaches had their onset during active service, or are otherwise etiologically related to or caused by his service? Please consider and discuss the relevant lay and other evidence, including that the Veteran reported ongoing symptoms since service, that in August 2004 the medical evaluation board summary reported that the Veteran had occasional headaches for four months, and that the Veteran reported headaches at separation from service. (b.) Then also answer, is it at least as likely as not (50 percent probability or greater) that the Veteran's headaches were either: 1. caused by a service-connected disability including, PTSD, OR; 2. aggravated by (i.e., worsened beyond the normal progression of the disease) the Veteran's service-connected disability including, specifically PTSD? In addressing whether any of the Veteran's service-connected disabilities, including, specifically PTSD, was a source of aggravation of the Veteran's headaches the examiner must attempt to establish a baseline level of severity of the headaches prior to aggravation by the service-connected disability, if any can be determined. Please consider and discuss that the August 2016 VA examiner noted that he believed that the Veteran's headaches symptoms were "exacerbated" by his diagnosed PTSD and bipolar disorder. See C&P Exam received August 2016. Please note, causation and aggravation are separate concepts and must be addressed independently. 3. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is returned to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.