Citation Nr: 21015511 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-17 810 DATE: March 17, 2021 ORDER Entitlement to service connection for a lumbar spine disability is granted. REMANDED Entitlement to service connection for diabetes mellitus, type 2 is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s lumbar spine disability is related to service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1117, 1118, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1993 to April 1993 and from September 2005 to September 2008. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran was afforded a hearing before the undersigned in July 2020. The hearing transcript is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 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). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of a “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 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). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Entitlement to service connection for a lumbar spine disability The Veteran contends that his lumbar spine disability had its onset in and is related to service. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran has a current diagnosis of degenerative disc disease of the lumbar spine with chronic lumbar strain, as evidenced by the June 2011 VA examination. Service treatment records show the Veteran did in fact injure his lumbar spine. In this regard, records reflect that in December 2006, the Veteran was working on a vehicle, when he slipped and fell, hurting his low back. The Veteran was put on light duty, and complained of back pain while on deployment in Iraq. Two weeks after his service injury, x-rays of the Veteran’s back were taken, and he was diagnosed with lumbago. Thus, the question becomes whether the current disability is related to service. The Veteran was afforded a VA examination in June 2011 to assess the nature and etiology of his lumbar spine disability. The examiner acknowledged the Veteran’s in-service low back injury, as well as the Veteran’s complaints of back pain since service. The examiner opined that the Veteran’s lumbar spine disability is less likely than not related to his service injury. It was reasoned that there were no back complaints upon separation from service in 2008. Further, the examiner explained that this was a difficult question, as the Veteran sustained a back injury in service as well as a back injury post service during a work incident in 2010. The examiner acknowledged that a worker’s compensation claim was denied due to the fact that the Veteran had a pre-existing back condition from the military. The examiner also noted that it is likely the degenerative disease is likely age related. However, the examiner also indicated that the Veteran’s chronic lumbar strain was exacerbated by the work injury of July 2010. The Board finds this opinion to be internally inconsistent. In this regard, the examiner opines both that the Veteran’s current back injury is less likely than not related to service, while at the same time, opines that the Veteran’s post-service work injury aggravated his prior chronic lumbar injury. The Board further notes an April 2013 QTC examination is of record. The examiner noted that the Veteran’s back condition has existed since December 2006, due to injury. It was explained that the veteran fell, and his injury was exacerbated by missions in Iraq. The Board acknowledges January 2014 buddy statements of record from two of the Veteran’s military colleagues who recall the Veteran’s back injuries and continued symptoms. Finally, the Board acknowledges the Veteran’s sworn testimony before the undersigned in July 2020. The Veteran pertinently testified that he continued to suffer from symptomatology, including pain since his separation from service due to his back injury, and that his 2010 work injury was just an exacerbation. The Board finds the Veteran’s testimony to be credible. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current lumbar spine disability is related to service. Indeed, though the Veteran’s record contains a negative etiological opinion, there is no medical evidence of record which indicates that his back problems began post-service. In fact, the medical evidence of record is indicative that the Veteran’s post-service work injury was an exacerbation of his in-service back injury. Accordingly, after resolving all doubt in favor of the Veteran, 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 1. Entitlement to service connection for diabetes mellitus, type 2 is remanded. The Veteran was not afforded a VA examination for his claim of service connection for diabetes mellitus, type 2. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The McLendon elements are satisfied in this case. The first element is not in dispute; the Veteran’s VA medical records reflect a diagnosis of diabetes mellitus, type 2. See March 2012 VA medical records. Regarding the second element, the Board notes that review of the Veteran’s service treatment records shows a March 2006 evaluation reflecting elevated glucose levels of 111. The Board notes that the Veteran indicated in his March 2017 substantive appeal that his elevated A1C began in service, and continued since then – despite continued diet and exercise. The Veteran credibly testified the same during a sworn hearing before the undersigned in July 2020. Thus, a remand for a VA examination and opinion is required. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA and private treatment records pertinent to the Veteran’s diabetes mellitus claim. 2. Thereafter, schedule the Veteran for an examination with an appropriately qualified provider for his diabetes mellitus. The examiner must review the entire claims file. The examiner is asked to provide a response to the following: a. Is the Veteran’s diabetes mellitus, type 2 at least as likely as not related to service? b. Is it at least as likely as not that the diabetes mellitus (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner must provide a rationale to support the opinion(s) offered. In providing the requested opinions, the examiner must consider the Veteran’s description of his in-service symptoms as well as his post-service symptoms. These include specifically the Veteran’s high H1C and glucose readings in service. If there is any medical reason to accept or reject the proposition that the Veteran’s reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.