Citation Nr: 21013540 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 19-12 774 DATE: March 9, 2021 ORDER Service connection for lower back disability, to include arthritis of the lumbar spine, is granted. REMANDED Service connection for a kidney condition is remanded. FINDING OF FACT The Veteran's lower back disability, to include arthritis, had its onset in service. CONCLUSION OF LAW The criteria for service connection for a back disability, to include arthritis, have been met. 38 U.S.C. §§ 1131, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.306(a), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1976 to November 1979 and December 1979 to September 1987. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by a Regional Office (RO). This case has been previously remanded twice, most recently in April 2020 for further evidentiary development. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 1 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand on the issue of service connection for a kidney condition is warranted. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101 (3), 1112(a); 38 C.F.R. §§ 3.307 (a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis is among the listed conditions. In adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Competent lay evidence is any evidence not requiring that the person giving the evidence have specialized education, training or experience. 38 C.F.R. § 3.159(a)(2). When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In 1999, the Veteran was diagnosed with arthritis in his lumbar spine, after an MRI showed bilateral facet arthritis and ventral osteophytic spurs in his lumbar spine. This satisfies the requirement of a current disability. The Veteran contends that his lower back pain began in service and has continued ever since. No back or spine problems were noted on the Veteran’s entrance examination. A 1978 performance evaluation noted that the Veteran was known in his battalion for his athletic skills, including track, baseball, football and basketball. The Veteran continued to play football in service through at least December 1986, which would have involved physical contact and exertion significantly in excess of his MOS of administrative and operations specialist. Service treatment records show that he sought treatment for low back pain in October 1981. Although a urinary infection was suspected, urinalysis was normal. Records indicate that in June 1982, the Veteran sought orthopedic treatment for “multiple musculoskeletal complaints.” The Veteran continued to report back pain, noting recurrent back pain and arthritis on his 1987 report of medical history. While the separation examination documented no spine abnormalities, the Veteran was discharged due to physical disability, specifically cervical spondylosis, calling into question the reliability of the separation examination. After discharge from service, the Veteran remained in Germany and received treatment from local German providers for his medical needs; the Veteran lived and worked in Germany for approximately four decades after separation from service. There are significant gaps in the private treatment records associated with the claims file. Most of the medical records received for this period were associated with disability and unemployment benefits proceedings in German. Additionally, some of the records are illegible and cannot be translated. Post-service treatment records show that the Veteran underwent several surgeries on his neck in the 10 years after service, the latest in June 1997. Treatment providers noted neurological symptoms in the Veteran's lower extremities in July 1997, although the Veteran denied lower extremity symptoms. Shortly after his 1997 neck surgery, the Veteran complained of lower back pain. In 1998, the Veteran reported that he was routinely using back braces at work. That same year, an MRI showed lumbar spine arthritis at L4-5 and L5-S1. There is a gap in treatment records until approximately 2014, where there are indications that the Veteran was being treated for back pain and lumbar radiculopathy. The Veteran relocated to the United States from Germany in June 2019, and since then has continued to be treated for his lower back disability at VA facilities. The record contains several VA opinions from February 2019, January 2020, September 2020 and October 2020, but none can be given probative weight. The February 2019 VA examiner concluded that the Veteran’s lower back pain was less likely than not caused by his in-service thoracic spine injury due to no in-service reports of lower back pain, apart from treatment for urinary tract infections. However, lack of in-service treatment alone is not a sufficient rationale, and the Veteran's in-service complaints of lower back pain were not all associated with treatment for urinary tract infections. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Peake, 21 Vet. App. 23 (2007). In 1981, the Veteran sought treatment for low back pain. Although doctors initially suspected a urinary tract infection, the Veteran’s urinalysis was normal, and he was treated with neosporin for a penile fissure. Additionally, in May 1987, the Veteran reported recurrent back pain and arthritis on his report of medical history. As the opinion rests on an inaccurate factual premise, it cannot be afforded probative weight. In its April 2020 remand order, the Board found the January 2020 negative nexus opinion inadequate as it failed to provide an adequate rationale, instead relying on a conclusory statement that the Veteran’s back pain was an “inevitable consequence” of aging. Consequently, this opinion is given no probative weight. The positive September 2020 opinion stated that it is more likely than not that the Veteran’s claimed disability was incurred in or caused by the claimed inservice injury, event or illness and that the Veteran’s back disability is at least as likely as not the result of the service-connected cervical spine disability with upper extremity radiculopathy. This opinion was not the result of an in-person examination, and the rationale in support of these conclusions consisted of a summary of the January 2020 VA examination’s findings regarding the Veteran’s kidney and lower back, as well as the Veteran’s history of cervical spondylosis. However, there was not an explanation connecting these examination findings to the etiology of the Veteran's lower back condition. Therefore, this opinion is not given probative weight. Likewise, the October 2020 opinion is not given any probative weight. The examiner concluded that because the Veteran’s examination was within normal limits on the day of the examination, the Veteran did not have a current back disability, and that it was less likely than not that his back condition was caused or aggravated by his service-connected disabilities. However, this is inconsistent with her notations that the Veteran had been diagnosed with arthritis based on a 1998 MRI, lumbar spondylosis based on a December 2019 X-ray and that another VA examiner had diagnosed him with lumbar strain and radiculopathy in February 2019. Her rationale did not account for the Veteran’s reports of pain causing functional limitation, especially the effects of his radiculopathy and increased symptoms during flare-ups; accordingly, it is given no probative weight. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Turning to the Veteran’s statements regarding his lower back pain, the Board acknowledges that the record contains inconsistent statements about the onset of the Veteran’s lower back pain. Treatment notes indicate that the Veteran has reported that his lower back pain started in 2017 (three years after filing the claim for service connection for back pain), began after his September 1997 cervical spine surgery, or began in service. The Veteran is competent to describe the nature, onset and course of his back pain. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a preliminary matter, the Board observes that none of these statements are directly from the Veteran – they were all recorded by a third party, either a VA examiner or a doctor. The 2019 VA examiner noted that the Veteran stated his lower back pain had begun in 2017. As noted above, this would be approximately three years after the Veteran filed the instant claim for compensation for a lower back condition. It also conflicts with historical treatment records showing that the Veteran was treated for lower back pain in 1999 and on several occasions in 2014. The Board puts no probative weight on this statement. On the other hand, the Veteran’s 1998 and 1999 statements that his back pain and leg pain began after his September 1997 cervical spine surgery are credible. They were initially made in the course of seeking treatment for this complaint and prior to filing a claim for service connection for a lower back condition. Finally, the Veteran stated at the October 2020 VA examination that he has had lower back pain since approximately 1980. This statement was made quite recently, in October 2020, after the Veteran’s claim had been remanded twice from the Board. This is a factor that weighs against credibility. However, his report of lower back pain beginning around 1980 is corroborated by contemporaneous records that pre-date his claim for compensation by three decades. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board finds this statement credible as well. The Board finds that both the Veteran's 1998-1999 statements and his October 2020 statement are entitled to some probative weight. Considering the context of the 1998-1999 statements, the Veteran had just undergone his second neck surgery, which he said completely relieved all of his pre-surgical neck pain, but reported lower back pain that had begun after the surgery. Indeed, he theorized that his lower back pain had been caused by the neck surgery. The Board recognizes that the Veteran is not competent to make this determination, and notes that medical imaging showed lumbar spine arthritis for which his doctors treated him. Additionally, in-service and post-discharge treatment records show that his neck condition was treated with systemic pain medication, which could have masked less acute lower back pain. On balance, the Veteran's 1998-1999 statements are given some probative weight. The record also shows that the Veteran sought treatment for lower back pain while in active duty service, years prior to his 1998-1999 statements, which bolsters the Veteran's October 2020 statement. Specifically, in October 1981, the Veteran sought treatment for lower back pain with urinary frequency. Physical examination showed a scab and fissure on his penis, and after urinalysis was normal, the Veteran was given neosporin to treat the fissure. The treatment notes do not document that the doctor assessed the Veteran’s report of low back pain. The Veteran again sought orthopedic treatment for “multiple musculoskeletal complaints” in June 1982. Instead of being evaluated for his musculoskeletal complaints, the Veteran was referred for a psychiatric evaluation. At the consultation later that month, the clinician stated that no mental disorder was seen in the interview, and he was unable to “discern any gain for [the Veteran’s] current symptoms” as he was in his preferred MOS and did not want to leave the Army. The clinician also noted that on his review of “critical items” on the hypochondriacal scale, the Veteran only endorsed those which corresponded with his physical symptoms. The Veteran continued to report back pain – in his May 1987 Report of Medical History, the Veteran endorsed recurrent back pain. On balance, accounting for both the late date of his statement and the corroborating documentation from Veteran’s service treatment records, this statement is entitled to some weight. Without any probative medical nexus opinions, the evidence is in relative equipoise. Veteran’s statements about onset are entitled to some probative weight, and his in-service treatment records show that he made multiple complaints of back pain, although some of these complaints were generalized. These same records also show that on at least two occasions, his orthopedic complaints were ignored. Post-service records show that although the Veteran attributed the onset of his back pain to his September 1997 neck surgery, his doctor and the 1999 VA examiner ascribed it to the lumbar arthritis that had been detected on a 1998 MRI. The Board finds that the evidence is in relative equipoise. Resolving all doubt in favor of the Veteran, service connection for a low back disability, to include arthritis, is granted. REASONS FOR REMAND In its April 2020 remand directive, the Board ordered a new VA kidney examination and new nexus opinions on service connection. The examiner was instructed to presume a diagnosis of kidney stones and kidney insufficiency for purposes of the examination. The claim file contains two sets of nexus opinions, from two different examiners. Unfortunately, neither is adequate and another remand is warranted. In September 2020, the Veteran underwent a VA kidney exam with examiner LE, a nurse practitioner, who provided negative nexus opinions. On the same day in September 2020, reviewer CB, another nurse practitioner, also provided negative nexus opinions. LE’s opinions are inadequate, as she bases it on her conclusion that the Veteran has no diagnosed kidney conditions, ignoring the Board’s directive to presume a diagnosis for kidney stones and kidney insufficiency. Additionally, the Board notes that service connection may be awarded for a disability if the claimant had the disability at the time the claim was filed or during the pendency of that claim, even if no disability is present at the time of the claim’s adjudication. See McClain v. Nicholson, 21 Vet. App. 319 (2007). As outlined in its April 2020 remand order, the claims file contains diagnoses for kidney stones and kidney insufficiency during the pendency of this claim. CB’s negative opinions are likewise inadequate, as she fails to account for evidence that the Veteran was being treated for a kidney condition prior to 2019. Specifically, the evidence of record indicates that the Veteran had an abnormal creatine level in June 1997 and by 2013, the Veteran had been placed on a low purine diet for his renal function. In July 2015, lab tests showed that the Veteran had high uric acid. Moreover, in July 2001, the Veteran told VA that he was unable to take pain medication for his service-connected disability due to a kidney condition. Despite CB’s contention that the Veteran's kidney dysfunction had resolved in September 2019, two months later, his treatment providers were still instructing him to avoid certain medications due to his kidney condition. Additionally, neither LE nor CB specifically addresses the Veteran's diagnosis for kidney stones, as required by the April 2020 order. Therefore, a remand for adequate opinions is warranted. The matters are REMANDED for the following action: 1. Associate updated VA records with the claims file. 2. Schedule the Veteran for a VA kidney examination, with an examiner other than those who examined or reviewed the Veteran's case in September 2020. The entire claims folder must be reviewed in conjunction with the examination. The examiner must identify the nature and etiology of all current disabilities and conditions of the kidneys. Diagnoses of nephrolithiasis (kidney stones) and kidney insufficiency are presumed for purposes of the examination. The examiner is instructed that even if no disability is present at the time of adjudication, a “current disability” includes one that existed at the time the claim was filed or during the pendency of that claim. The examiner must opine as to whether any kidney disability is at least as likely as not (50 percent or greater) caused or aggravated by: (a) any event or incident of active service, to include kidney infection, urinary tract infections or any other genitourinary disease. The examiner should specifically consider and comment upon the circumstances and effect of the Veteran's in-service hospitalization in November and December 1980 on his kidney function, as well as abnormal test results in July 1997, July 2015 and restricted diet in 2013; or (b) the Veteran's service-connected cervical spine disability with upper extremity radiculopathy, including treatment for that service-connected disability. A complete rationale is requested for all opinions provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Then, readjudicate the claim on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and return the appeal to the Board WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Megan-Brady Viccellio 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.