Citation Nr: 21013184 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-51 545 DATE: March 8, 2021 ORDER New and material evidence having been received, the Veteran’s claim to reopen entitlement to service connection for a low back disability is granted. REMANDED The issue of entitlement to service connection for a low back disability is remanded. The issue of entitlement to service connection for a neck disability, to include as due to a low back disability, is remanded. The issue of entitlement to service connection for a left hip disability, to include as due to a low back disability, is remanded. The issue of entitlement to service connection for a right hip disability, to include as due to a low back disability, is remanded. The issue of entitlement to service connection for a left knee disability, to include as due to a low back disability, is remanded. The issue of entitlement to service connection for a right knee disability, to include as due to a low back disability, is remanded. The issue of entitlement to service connection for a heart disability, to include as due to a low back disability, is remanded. The issue of entitlement to service connection for hypertension, to include as due to a low back disability, is remanded. The issue of entitlement to service connection for residuals of a stroke, to include as due to a low back disability, is remanded. The issue of entitlement to service connection for an acquired psychiatric disability, to include as due to a low back disability, is remanded. The issue of entitlement to service connection for erectile dysfunction, to include as due to a low back disability, is remanded. The issue of entitlement to service connection for a gastrointestinal disability, to include as due to a low back disability, is remanded. The issue of entitlement to service connection for hiatal hernia, to include as due to a low back disability, is remanded. The issue of entitlement to service connection for bilateral pes planus, to include as due to a low back disability, is remanded. The issue of entitlement to service connection for a right hand disability, to include as due to a low back disability is remanded. The issue of entitlement to service connection for a sleep disorder, to include as due to heart disability, is remanded. The issue of entitlement to service connection for headaches, to include as due to the service-connected tinnitus, is remanded. FINDINGS OF FACT 1. A June 1982 rating decision denied entitlement to service connection for a low back disability; the Veteran filed a timely Notice of Disagreement as to the June 1982 rating decision in November 1982; a Statement of the Case (SOC) was issued in November 1982; the Veteran did not file a substantive appeal as to the November 1982 SOC. 2. Evidence received since the June 1982 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for a low back disability. CONCLUSIONS OF LAW 1. The June 1982 rating decision which denied entitlement to service connection for a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.200, 20.202, 20.302, 20.1103. 2. New and material evidence having been received; the claim for entitlement to service connection for a low back disability is reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156(a), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from July 9, 1980, to August 15, 1980, in the Army National Guard. These matters come before the Board of Veterans’ Appeals (Board) on appeal of June 2015, October 2016, and April 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in April 2019. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In April 2019, the Board remanded the claims of entitlement to service connection for bilateral hearing loss and tinnitus for additional development. A July 2019 rating decision granted entitlement to service connection for bilateral hearing loss and tinnitus. As this represents a total grant of the benefits sought on appeal with respect to these issues, they are no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1159 (Fed. Cir. 1997). As an initial matter, the Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability. Entitlement to service connection for a low back disability was denied in a June 1982 rating decision based upon the finding that the Veteran’s low back disability was a preexisting condition of spina bifida; as such service connection for a low back disability could not be granted. Since the June 1982 rating decision, new and material evidence has been received, including a May 2019 VA examination which reflects that the diagnosis of spina bifida was erroneous. The Board finds that new and material evidence has been received which is sufficient to reopen the claim for entitlement to service connection for a low back disability. See Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). REASONS FOR REMAND Entitlement to service connection for a low back disability is remanded. The Veteran seeks entitlement to service connection for a low back disability. The Veteran was provided a VA examination as to his low back condition in May 2019. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here, the Board finds the May 2019 VA examination related to the Veteran’s low back disability is inadequate for decision-making purposes. Upon physical examination, the VA examiner determined that the Veteran does not have a diagnosis of spina bifida. The VA examiner diagnosed the Veteran with degenerative arthritis of the spine and opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the VA examiner merely stated that the Veteran did not have any diagnosis related to his back prior to 2014. However, a review of the medical record reflects that the Veteran was diagnosed with instability in the low back in April 1982, shortly after his separation from active service. Additionally, a February 1982 private treatment record contains a diagnosis of lumbar sprain or strain and sciatica. As the May 2019 VA examination did not address the diagnosed low back disabilities shortly after the Veteran’s separation from active service, the Veteran must be provided a new VA examination to address whether his current low back disability is etiologically related to his active service. Entitlement to service connection for a neck disability, left hip disability, right hip disability, left knee disability, right knee disability, heart disability, hypertension, residuals of a stroke, acquired psychiatric disorder, erectile dysfunction, gastrointestinal disability, hiatal hernia, bilateral pes planus, a right hand disability, and a sleep disorder is remanded. The Veteran contends that he has a neck disability, bilateral hip disability, bilateral knee disability, a heart disability, hypertension, residuals of a stroke, erectile dysfunction, gastrointestinal disability, hiatal hernia, bilateral pes planus, a right hand disability, and an acquired psychiatric disorder that are secondary to his low back disability. See, e.g., September 2019 third party correspondence. As such, the Veteran’s claims for entitlement to service connection for a neck disability, bilateral hip disability, bilateral knee disability, a heart disability, hypertension, residuals of a stroke, erectile dysfunction, gastrointestinal disability, hiatal hernia, bilateral pes planus, a right hand disability, and an acquired psychiatric disorder are inextricably intertwined with his claim for entitlement to service connection for a low back disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Additionally, the Veteran contends that he has a sleep disorder that is secondary to medication he takes related to his heart disability. See November 2016 Notice of Disagreement. Entitlement to service connection for headaches is remanded. The Veteran contends that he has headaches that are directly related to his active service or secondary to his service-connected tinnitus. See Third Party Correspondence, received November 2019. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A ; 38 C.F.R. § 3.159. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). The Veteran has not yet been provided with a VA examination related to his claim for entitlement to service connection for headaches. Here, a November 2014 private treatment record reflects that the Veteran suffers from mild headaches. Additionally, in November 2019 the Veteran’s representative submitted medical literature indicating an association between tinnitus and headaches. Thus, there is evidence of a current disability and an indication that the claimed disability may be associated with a service-connected disability. Accordingly, remand is required for an examination. The Board notes that the June 2015 rating decision noted that the Veteran’s headaches preexisted his active service. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234; see also 38 U.S.C. § 1111 (presumption of sound condition). In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. Wagner, 370 F3d. at 1345; Horn, 25 Vet.App. at 234; 38 U.S.C. § 1111. The analysis is different in a case where the preexisting condition was noted upon entry into service. “[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder.” Wagner, 370 at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In such claims, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. See Wagner; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the claimant meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption. Horn, 25 Vet.App. at 234; 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To rebut that presumption, the Secretary must show, by clear and unmistakable evidence, that the worsening of the condition was due to the natural progress of the disease. Horn, 25 Vet.App. at 235 n. 6; 38 U.S.C. § 1153. To be “noted” within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of such condition. See id. at 240 (holding that “asthma” was not noted where, although the Veteran checked a box indicating that he had a history of the disease, a clinical evaluation detected no abnormalities of the lungs). However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (holding that “bunions” were noted at induction examination where orthopedic examiner diagnosed “bunions,” despite also stating “no problem [with] feet.”). Here, the Board finds that the Veteran’s service treatment records do not demonstrate headaches noted upon entry into service. Although the Veteran reported headaches on his report of medical history prepared at the time of enlistment, no disability was recorded on examination. The examiner who conducted the Veteran’s May 1980 enlistment examination indicated that the Veteran’s head, face, neck, and scalp were normal. As such, the presumption of soundness applies as to the Veteran’s headaches. Therefore, if the Board is to find that the presumption of soundness is rebutted and that the Veteran’s headaches preexisted service, it must find (1) that clear and unmistakable evidence shows that headaches preexisted service; and (2) that clear and unmistakable evidence shows that his headaches were not aggravated by service. Horn, 25 Vet.App. at 234. On remand, the Veteran must be provided a VA examination to address whether clear and unmistakable evidence shows that the Veteran’s headaches preexisted service and whether clear and unmistakable evidence shows that his headaches were not aggravated by service. The matters are REMANDED for the following action: 1. Forward the record and a copy of this remand to the examiner who conducted the May 2019 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should: (a.) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s low back disability had its onset during his active service or is otherwise etiologically related to the Veteran’s service. The VA examiner must address the Veteran’s diagnosed low back disabilities in February 1982 and April 1982. The VA examiner must also address the Veteran’s contentions that he injured his back during boot camp in 1980 and has since experienced low back pain. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any headache disability. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Provide a diagnosis for each headache disability demonstrated since service, found on current examination or in the record. The examiner should consider the November 2014 private treatment record noting mild headaches. (b.) Provide an opinion as to whether any headache disability clearly and unmistakably preexisted his entrance into active service. Any such clear and unmistakable evidence must be identified. The examiner should consider the November 1980 enlistment examination, which noted that the Veteran’s head, face, neck, and scalp were normal. The examiner should also consider the Veteran’s report headaches on his report of medical history on enlistment. (c.) If the Veteran’s headache disability preexisted service, the examiner should also state whether such disability was clearly and unmistakably not aggravated beyond the natural/normal progression of the disorder as a result of service. Any such clear and unmistakable evidence must be identified. Rationale must be provided for the opinions proffered. (d.) If the examiner determines that the Veteran’s headache disability did not clearly and unmistakably preexist service, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that a headache disability had its onset in service or was otherwise caused by active service. Rationale must be provided for the opinion proffered. (e.) If not, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s headache disability is proximately due to or the result of his service-connected tinnitus. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must note that it is not required that the headache disability is shown to be “predominantly” due to or result of tinnitus, but rather, whether there is any contributing degree of etiological relationship to tinnitus. (f.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s headache disability is aggravated beyond natural progression by his service-connected disabilities, specifically to include his service-connected tinnitus. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must note that it is not required that the headache disability is shown to be aggravated beyond natural progression “predominantly” by tinnitus, but rather, whether there is any contributing degree of aggravation beyond natural progression by the service-connected tinnitus. The examiner should consider the medical literature submitted by the Veteran’s representative entitled “Tinnitus and Headache.” 3. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.