Citation Nr: 21011694 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-37 223 DATE: March 2, 2021 ORDER Entitlement to service connection for lumbosacral strain is granted. REMANDED Entitlement to service connection for a cervical spine condition is remanded. Entitlement to service connection for bilateral pes planus is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s lumbosacral strain is related to his active service. CONCLUSION OF LAW The criteria for service connection for lumbosacral strain have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1976 to August 1976 and from October 1980 to October 1983. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board denied the Veteran’s claim for service connection for bilateral pes planus. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court granted a Joint Motion for Remand (JMR) by the Veteran’s attorney and the VA General Counsel. In August 2020, the Board remanded the claim for development consistent with the JMR. The Veteran’s claims for service connection for a cervical spine condition and a lumbar spine condition were previously before the Board in March 2019 and July 2019 when the claims were remanded for further development. A June 2020 rating decision granted service connection for ankle disabilities. As the decision constitutes a full grant of the claims previously before the Board, the matters are no longer before the Board and will not be discussed further. Entitlement to service connection for a lumbosacral strain is granted. Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, the Veteran contends his lumbar spine condition is related to his active service or, alternatively, is secondary to his service-connected knee conditions. As service connection is being granted on a direct basis, the Board will not further address secondary service connection. The Board concludes that the Veteran has a current lumbar spine condition, lumbosacral strain, that is related to his active service. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The record reflects that the Veteran has a current lumbar spine condition as a June 2014 x-ray report noted signs of disc degeneration and osteoarthritis, an October 2015 private medical record notes a diagnosis of spondylosis, and a December 2019 VA examination report notes a diagnosis of a lumbosacral strain. Thus, the first element of service connection has been met. Regarding an in-service incurrence, the Veteran reported, in an October 2015 private treatment record, that he was a paratrooper in service and performed about 20 jumps (sometimes in full gear which weighed over 70 pounds), completed physical training every morning, and then ran three to four times per week. He stated that the jumps, conditions of hard landings, constant running, and heavy gear negatively impacted his back, noting that he experienced pain in his back since service. The Board finds the Veteran to be competent and credible to describe the circumstances of his service and his military duties. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In addition, his DD-214 reflects that he earned a parachute badge during service. Therefore, the second element of service connection has also been met. Thus, the remaining question is whether the Veteran’s current lumbar spine condition is related to his active service. On this question, there are several medical opinions in the record. In June 2014, Dr. S.C. conducted imaging of the Veteran’s lumbar spine and noted that the Veteran had abnormal findings, including disc degeneration and osteoarthritis. Dr. S.C. then opined that the Veteran’s current condition is more likely than not a result of his service-related duties, noting that the hard landings while parachuting and running during training described by the Veteran is consistent with the degeneration found in his lower back. In addition, Dr. S.C. noted that injuries to the back at an early age are proven to cause premature degeneration of the joints with an increase of osteoarthritis, including decreased joint space, sclerosis, and osteophytosis, which were all seen in the Veteran’s diagnostic studies. The Board places great probative weight on this opinion as it is consistent with the record and reflects adequate consideration of the Veteran’s lay statements regarding his in-service experiences. In February 2015, a VA examiner opined that the Veteran’s degenerative changes noted on a June 2014 x-ray were less likely than not related to his service, including parachuting from planes, noting that the Veteran’s medical records were silent for a low back chronic condition during his service. The examiner also noted there was no continuity of symptomatology and that low back complaints made over 30 years after separation from service cannot reasonably be connected to service as there are multiple other intervening factors over the years, including aging and occupation/daily activities. In December 2019, another VA examiner opined that the Veteran’s lumbar spine condition was not related to his service as a parachutist, noting that there were no medical records showing a diagnosis or treatment for a back condition in service. The Board places little to no probative value on the February 2015 and December 2019 opinions as the examiners failed to adequately address the Veteran’s lay statements, namely that he experienced pain since service and that his lumbar spine condition could have also been caused by doing physical training, hard landings, and running during service. In sum, as the Board places greater probative weight on the positive June 2014 nexus opinion in the record, the Board resolves any reasonable doubt in the Veteran’s favor and concludes the Veteran’s lumbar spine condition, diagnosed as lumbosacral strain, is related to his active service. Accordingly, service connection for lumbosacral strain is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine condition is remanded. Although the additional delay is regrettable, the Board finds an additional remand is required before a decision can be made regarding the Veteran’s claim. The record reflects that the Veteran was involved in an auto accident in September 1976. The Veteran’s June 1980 service enlistment examination includes a notation that the Veteran injured his neck in an auto accident. In addition, September 1976 medical records considered in the Veteran’s physical profile reflect that he suffered a neck sprain during the accident and that the diagnosis had healed by October 1976. In addition, the Veteran contends his current neck condition was caused by his service. Specifically, he alleges his neck condition is due to parachute jumping in-service (as noted in a September 2014 statement) and a result of in-service physical training (as reported in a December 2019 VA examination). The Veteran also contends that he has experienced pain in his neck since his service. As there is an indication that a neck condition manifested in service and preexistence of a neck condition, the record raises questions regarding the presumption of soundness. In order to rebut the presumption of soundness, there must be clear and unmistakable evidence that the Veteran's injury or disease was both pre-existing and not aggravated by service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In February 2015, a VA medical opinion was requested to determine whether the Veteran’s neck condition, which clearly and unmistakably preexisted service, was aggravated beyond its natural progression by service, including parachuting from planes. In the opinion, the examiner opined that there was no objective evidence of aggravation of the Veteran’s neck condition beyond natural progression by service, including jumping out of planes. In support of the opinion, the examiner noted that the Veteran’s service entrance examination included a notation that the Veteran injured his neck in a 1976 auto accident and that his separation examination was silent for any complaints or treatment for his neck. The examiner also noted that there was no continuity of symptomatology in close proximity to his release from active duty and that neck complaints over 30 years after separation from service cannot reasonably be connected to active duty service when there are multiple other intervening factors, including aging and occupational/daily activities. However, the examiner did not provide an adequate rationale for the conclusion that the condition preexisted service (especially considering 1976 medical records indicate the neck sprain that resulted from the auto accident had healed) and was clearly and unmistakably not aggravated by service. In addition, the examiner failed to adequately address the Veteran’s lay statements, including whether his parachuting or physical training caused his current neck condition or clearly and unmistakably aggravated his pre-existing neck condition. In addition, the December 2019 VA examiner found the Veteran’s neck condition was less likely than not related to military service, but did not provide an adequate rationale for the opinion, noting only that there were no medical records showing diagnosis or treatment for a neck condition during active duty. Consequently, the Board finds remand for further development necessary. 2. Entitlement to service connection for bilateral pes planus is remanded. A review of the record reflects that the Veteran has a current diagnosis of bilateral pes planus, as noted on September 2016 and October 2020 VA examination reports. In an August 2014 verified statement, the Veteran reported that his condition was due to parachute jumping during service and, in his March 2015 Notice of Disagreement, he reported that his condition was due to running with ill-fitting boots. However, the medical opinions of record are inadequate for determining the etiology of the Veteran’s pes planus. In September 2016, a VA examiner opined that the Veteran’s pes planus was less likely than not incurred in or caused by is service. In support of the opinion, the examiner referenced medical literature that explained the causes of pes planus. The examiner then explained that the Veteran’s service treatment records were silent for any diagnosis or treatment of pes planus and that the Veteran was not diagnosed with pes planus until 2015. The examiner also stated that the Veteran reported working on his feet for 10-hour days on concrete floors and that flat feet can be caused by repetitive stresses over longer periods of time. The examiner concluded by stating medical literature does not indicate parachute jumping is a cause for pes planus as an injury from parachute jumping would be described as a contusion, sprain, fracture, dislocation, or fracture dislocation, not pes planus. In October 2020, another VA examiner opined that the Veteran’s bilateral pes planus was not related to his active service. In support of the opinion, the examiner stated there were no medical records showing diagnosis or treatment for the bilateral pes planus condition during active duty. The examiner acknowledged that the Veteran had complaints of toe pain and a left foot mass in service but explained that those complaints were unrelated to flat feet as toe pain and a mass do not cause decreased arches in the feet. The examiner also stated that there were no imaging studies which supported the Veteran’s statement that his pes planus was a result of parachute jumping in service. Lastly, the examiner noted that the Veteran had been diagnosed with gout but noted the diagnosis was unrelated to pes planus. However, the Board finds both medical opinions inadequate as the examiners failed to adequately address the Veteran’s lay statements, namely that his pes planus could have also been caused by physical training and running with ill-fitting boots. In addition, neither examiner adequately explained why the Veteran’s bilateral pes planus was not caused by his in-service parachute jumps. Consequently, the Board finds remand for an additional medical opinion is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician addressing the etiology of any cervical spine condition, to include a cervical strain. The Veteran’s claims file must be made available to the examiner for review. An examination should only be scheduled if the examiner deems one is necessary for providing the requested opinions. Following a review of the claims file, the examiner is asked to respond to the following: (a) Whether any cervical spine condition clearly and unmistakably (undebatably) preexisted the Veteran’s service. (b) If the examiner finds the cervical spine disability did clearly and unmistakably preexist service, the examiner must opine as to whether it was clearly and unmistakably NOT aggravated by service, to include the Veteran’s in-service parachute jumping and physical training. (c) If the examiner finds that a cervical spine condition either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) any cervical spine condition is related to an in-service injury, event, or disease, including the Veteran’s in-service parachuting and physical training. The examiner should consider the Veteran’s statement that he has experienced pain in his neck since his service. In addition, in providing the opinions requested in (a) and (b), the examiner should address an October 1976 medical record which indicated the Veteran’s neck sprain from the auto accident had healed. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. Obtain an addendum opinion from an appropriate clinician addressing the etiology of the Veteran’s bilateral pes planus. The Veteran’s claims file, including this remand, must be made available to the examiner for review. An examination should only be scheduled if the examiner deems one is necessary for providing the requested opinion. Following a review of the Veteran’s claims file, the examiner is asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s bilateral pes planus is related to his active service, to include parachute jumping, physical training, and running with ill-fitting boots. In providing the requested opinion, the examiner should consider a May 2016 VA examiner’s statement that 20 or more parachute jumps and the rigors of maintaining readiness with ill-fitting leather boots can be deleterious to the feet. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. K. MARENNA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Jiggetts 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.