Citation Nr: 21021564 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-43 785 DATE: April 13, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is granted. Entitlement to service connection for a cervical spine disorder is granted. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, the Veteran’s lumbar spine disorder is etiologically related to his active service. 2. Resolving all doubt in favor of the Veteran, the Veteran’s cervical spine disorder is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disorder have been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a cervical spine disorder have been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in July 2002 to January 2003, January 2004 to May 2005, and June 2007 to August 2008, to include service in Southwest Asia. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) St. Paul, Minnesota. Jurisdiction of this appeal is currently with the RO in Houston, Texas. The Veteran testified at a virtual hearing before a Veterans Law Judge of the Board in June 2020. However, an audio problem during the hearing prevented transcription of the hearing. Therefore, the hearing transcript is not of record. Pursuant to 38 C.F.R. § 20.717, the Veteran was given the opportunity to request another hearing. See BVA Letter, June 30, 2020. The Veteran requested for another hearing within 30 days of the letter. See Correspondence, July 13, 2020. Accordingly, the Veteran was afforded another Board hearing. The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge in September 2020. A transcript of the hearing has been associated with the claims file. Service Connection – Lumbar Spine and Cervical Spine The Veteran contends that his lumbar and cervical spine disorders are as a result of his active service. Specifically, he asserts that the pain began during his tour in Iraq and that he carried more weight on a consistent basis because he acted as the radio operator for his squad. See Notice of Disagreement, May 21, 2015; see also Board Hearing Transcript, September 2, 2020. Additionally, he asserts that he began experiencing his lumbar and cervical spine pain due to shockwaves and concussion of improvised explosive device (IED) blasts. Id. 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 requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the e-file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30(2000). Initially, the Board notes that post-service treatment records contain diagnoses that include chronic low back pain and cervicalgia. See e.g. VA treatment record, November 16, 2019. Therefore, the first element, current disability is met. Service treatment records are negative for complaints, treatments or diagnoses related to lumbar or cervical spine disorders. The Veteran’s DD Form 214 lists his military occupational specialty as Bradley fighting vehicle system maintainer. Of record is a September 2019 private opinion submitted by Dr. C.S., D.C. The provider noted that the Veteran had presented to his office around September 2017 and reported long-standing pain, discomfort, and problems with his lower back and neck. The Veteran reported that his symptoms were intermittent, come more frequently in recent years and that he had been experiencing increased symptoms in his lumbar and cervical spines. The Veteran indicated that he believed he was injured while service in the armed forces overseas and that the injuries sustained in his military service had led to his current symptomatic state. The provider diagnosed cervical lordosis and degenerative disc disease of the C5/C6 disc space and joint, lumbar muscle spasm, multi-level facet joint degenerative changes at the L4/L5 disc bulge, and L5/S1 disc protrusion. The provider opined that, based on reasonable probability, it was more likely than not that the Veteran’s lumbar spine and cervical spine disorders were due to the injuries sustained while overseas during active service, and those injuries had led to the current symptomatic complaints and findings. This opinion had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). It is highly probative as to direct service connection. Of record is a September 2020 statement submitted by the Veteran’s friend, R.B., dated from June 2020. At that time, R.B. reported that he served with the Veteran in Iraq from 2007 to 2008. During their time in Iraq, R.B. noted that explosions occurred near their squad rack, resulting in the Veteran falling over. The author noted that the Veteran was slow to rise at that time, but reported he was “okay.” R.B. opined that the Veteran’s neck and back issues were caused by the explosion incident and fall in active service. The Veteran testified at a Board hearing in September 2020. At that time, the Veteran testified that he sustained several injuries during active service, to include being hit while working on a truck, and blast injuries during deployments. The Veteran testified that he did not report to sick call for any complaints of his neck at that time, and started seeking treatment for his neck sometime in 2014. With regard to his back, the Veteran testified that he carried extra weight while on deployment because he worked as a radio operator, experienced back pain during active service, and was required to perform a lot of physical duties pursuant to general duties as a soldier. The Veteran denied any post-service injuries related to his back. Here, the Veteran is competent to identify the circumstances of his experiences in-service; when he first experienced symptoms of back and neck pain, and other lumbar spine and cervical spine symptomatology and that those symptoms have continued since service. See 38 U.S.C. § 1154. Furthermore, his statements have been found credible. The Veteran has current diagnoses of lumbar spine and cervical spine disorders. Additionally, the Board finds that the September 2019 private opinion by Dr. C.S. is highly probative, and the medical opinion was rendered by a competent medical professional and is supported by adequate bases. The Board is prohibited from remanding for the purpose of obtaining evidence against a claimant's case. See Mariano v. Principi, 7 Vet. App. 305, 312 (2003). Accordingly, the Board finds that the evidence for and against the claims of entitlement to service connection for a lumbar spine disorder and a cervical spine disorder is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for a lumbar spine disorder and a cervical spine disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service Connection – Tinnitus, Right Knee Disorder, and Left Knee Disorder The Veteran seeks service connection for tinnitus, a right knee disorder, and a left knee disorder. Specifically, the Veteran asserts that his symptoms began during active service and continued since. With regard to his tinnitus, the Veteran reported noise exposure sustained during active service, to include gun fire without proper hearing protection, and explosions while deployed. See Board hearing transcript, September 2, 2020. With regard to his knees, the Veteran testified that he stepped incorrectly during a road march and began experiencing knee symptoms and pain during active service that continued since, to include during deployments. Id. In determining whether the duty to assist requires VA to provide a medical examination or medical opinion with respect to a Veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran’s service or with another service connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and a Veteran’s service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds the record incomplete to decide the claims. In the instant case, the Veteran has diagnoses of tinnitus, has competently and credibly reported bilateral knee pain and has a diagnosis of right knee chronic instability. See e.g. VA treatment record, November 16, 2019. In light of the foregoing, the Board concludes that a VA opinion should be obtained to determine the nature and etiology of the claimed tinnitus, right knee disorder, and left knee disorder. Id.; See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). The matters are REMANDED for the following action: 1. 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 his 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). 2. Then, schedule the Veteran for a VA examination with an appropriate clinician and obtain a VA opinion determine the etiology his claimed tinnitus. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following question: Is at least as likely as not (50 percent or greater probability) that the Veteran’s tinnitus had its onset during any period of service, or is otherwise related to such period of service? The examiner should specifically consider the Veteran’s reports of being exposed to acoustic trauma from his work as a Bradley mechanic, explosions and from firearms. In offering such opinions, the examiner should consider the lay statements of record. Any 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; any medical opinion 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. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Then, schedule the Veteran for a VA examination with an appropriate clinician and obtain a VA opinion determine the etiology his claimed right and left knee disorders. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following question: Is at least as likely as not (50 percent or greater probability) that the Veteran’s right and left knee disorders had its onset during any period of service, or is otherwise related to such period of service? The examiner should specifically consider the Veteran’s contentions that his knee disorders are the result of physical training and/or wear and tear during service and that his left knee condition is the result of overcompensating for his right knee condition. In offering such opinions, the examiner should consider the lay statements of record. Any 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; any medical opinion 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. See Jones v. Shinseki, 23 Vet. App. 382 (2010). (Continued on the next page)   The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.