Citation Nr: 21077547 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 10-21 356 DATE: December 30, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is granted. REMANDED Entitlement to service connection for hepatitis B is remanded. Entitlement to service connection for headaches, to include as secondary to a lumbar spine disorder, is remanded. Entitlement to service connection for tendonitis of the elbow, to include as secondary to a lumbar spine disorder, is remanded. Entitlement to service connection for depression, to include as secondary to a lumbar spine disorder, is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the evidence is at least evenly balanced to support a finding that the Veteran's lumbar spine disorder had onset in active duty service or alternatively in the line of reserve duty. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disorder have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.309(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from April 1985 to March 1986, from October 1990 to May 1991, and from October 1991 to February 1992. The Veteran had additional service in the U.S. Marine Corps Reserves. These matters initially came to the Board of Veterans' Appeals (Board) from August 2009 and June 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran's claims were previously remanded in December 2015, April 2017, and most recently on December 17, 2020. The Veteran was most recently issued a Supplemental Statement of the Case (SSOC) on August 13, 2021. The Board accordingly reasserts jurisdiction. In short, the Board concludes that the Veteran's claim for service connection for the lumbar spine disorder must be granted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). This is a full grant of that benefit sought on appeal; therefore, there is no prejudice in so adjudicating now. For the claim for hepatitis B, the Board determines that the Veteran was not afforded substantial compliance with previous remand directives from the December 2020 remand. As a result, that claim for service connection will be remanded, see Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, the claims for service connection for the psychiatric disorder, the elbow disorder, and the migraine disorder will also be remanded, because the Veteran has consistently claimed that all three of those are secondary to the lumbar spine disorder, and now that that is service connected, it can be the basis of secondary service connection. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 1. Entitlement to service connection for a lumbar spine disorder is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d). Direct service connection may not be granted without evidence of (1) a current 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. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a period of war or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing a continuity of symptomatology after service. 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has generally asserted that his lumbar spine disorder is due to either active duty or reserve service, but aside from this general statement, there is little other testimony that would allow the Board to determine whether his injuries may have been incurred while on active duty, or else in the line of duty while on active duty for training. It is uncontroverted that the Veteran's current lumbar spine diagnoses are for degenerative disc disease and arthritis of the lumbar spine, but not resulting in intervertebral disc syndrome (IVDS), status post-spinal fusion, discectomy, and laminectomy. See C&P Exam (Aug. 12, 2021). Most recently, the August 2021 examiner stated that because there was no documentation of back pain or an injury during active duty service or an accordant line of duty determination during a period of active duty for training, the back injury was less than 50 percent likely attributable to service. See C&P Exam (Aug. 12, 2021), at Opinion Question No. 3 et seq. The examiner instead concluded that the lumbar spine disorder is instead most likely attributable to a 2006 post-service injury incurred in civilian employment. The Board now concludes that the above negative opinion is based upon an inaccurate history and is inadequate for adjudication purposes. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). This is because the Board has located a service treatment record dated August 7, 1995 when the Veteran was placed in "not physically qualified" status due to a back injury. See STR ( Aug. 7, 1995 ); see also id. (June 23, 1995) (indicating that he was specifically cleared for drill participation then, only to be disqualified in August). The Board therefore resolves all reasonable doubt to conclude that there is a qualifying lumbar spine injury in the line of reserve duty. The last remaining element for service connection is the nexus element. In this case, the Veteran had previously offered a private medical opinion from his physician, Dr. C.R.D., who stated that "the initial injury (leading to spinal fusion at L4/L5 to treat spondylolisthesis) was most likely while serving in the U.S. Marine Corps." This positive nexus opinion appears to be based upon serious consideration of all available documentary evidence of record and/or the Veteran's accurate recounting of the history of the disorder. See also, generally, Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis the Board can consider and weigh against contrary opinion"). There is no negative opinion that must be weighed against Dr. C.R.D.'s nexus. Additionally, given the circumstances of this Veteran's individual case, the Board determines that it is precluded from rejecting this positive opinion and remanding for further evidence against the claim. See Mariano v. Principi, 17 Vet. App. 305 (2003). Instead, the benefit-of-the-doubt doctrine dictates that the claim for service connection for the lumbar spine disorder must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There is no further doubt to resolve, and because this is a full grant of the benefit sought on appeal, there is no prejudice in so adjudicating without substantial compliance with all previous remand directives. See Stegall, supra. REASONS FOR REMAND 1. Entitlement to service connection for hepatitis B is remanded. In short, the Board remanded the claim for hepatitis B in December 2020 to obtain an etiological opinion for the Veteran's theory that he contracted hepatitis B during active duty service from October 1990 to May 1991. See BVA Remand at Pages 2-3. The May 2021 examiner instead concluded that the date of contraction could not be determined without resorting to mere speculation, see C&P Exam Opinion at Question No. 3 et seq. (May 18, 2021) (rec'd Aug. 12, 2021), and additionally offered a statement concluding that the Veteran's blood clots and pulmonary embolisms are not related to hepatitis B, see id. at Question No. 4 et seq. Even though the Veteran is specifically claiming that hepatitis B was contracted from October 1990 to May 1991, service connection can be warranted due to any in-service occurrence or line of duty occurrence during reserve duty. This claim requires remand for an adequate etiological opinion. See Stegall v. West, supra. 2. Entitlement to service connection for headaches, to include as secondary to a lumbar spine disorder, is remanded. 3. Entitlement to service connection for tendonitis of the elbow, to include as secondary to a lumbar spine disorder, is remanded. 4. Entitlement to service connection for depression, to include as secondary to a lumbar spine disorder, is remanded. The Veteran has continuously stated that the above three claims arise from the lumbar spine disorder, see, e.g.: BVA Remand (Dec. 17, 2020), at Page 3. As that claim is now service connected, the Board must remand for etiological opinions that can now specifically consider secondary service connection, as this opinion was previously not possible and was therefore never elicited. See Harris, supra. The matters are REMANDED for the following action: 1. Assign an initial rating and effective date for the lumbar spine disorder. 2. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Following the receipt of outstanding records, return the claims file to an appropriate examiner to determine the etiology of the Veteran's claimed hepatitis B. The examiner must review the claims file and note that review in the examination report. The need for further physical examination is left to the discretion of the examiner. The examiner should address the following questions: (a.) Is it at least as likely as not (50 percent probability or greater) that hepatitis B had its onset in service or is otherwise etiologically related to service, to include any incident thereof? The examiner should specifically address the September 1991 service treatment record indicating that the Veteran has a history of positive enzymes upon donating blood in March 1991 while on active duty in Hawaii. While the Veteran claims that hepatitis B contraction is most likely between October 1990 and May 1991, the examiner should consider whether same was contracted at any time on active duty or else in the line of reserve duty. (b.) If the examiner determines hepatitis B was incurred in service, the examiner must address whether the Veteran's residuals of pulmonary embolism/blood clots are due to the Veteran's hepatitis B. A rationale should be provided for all opinions offered. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Following the receipt of outstanding records, return the claims file to an appropriate examiner to determine the etiology of the Veteran's claimed headache, elbow tenosynovitis, and acquired psychiatric disordersall of which must also specifically consider the Veteran's claim that they are secondary to the service-connected lumbar spine disorder. The examiner must review the claims file and note that review in the examination report. The need for further physical examination is left to the discretion of the examiner. For each of headaches, elbow tenosynovitis, and an acquired psychiatric disorder, the examiner is asked to provide the following opinions: A) Is it at least as likely as not (a 50 percent or greater probability) onset in or otherwise related to the Veteran's service, to include both active service and reserve service? B) Is it at least as likely as not proximately due to or aggravated by service-connected lumbar spine disability? The examiner should note that question B requires two opinions, one for proximate causation and a second for aggravation. (Continued on the next page) A rationale should be provided for all opinions offered. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Mike Sobiecki Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.