Citation Nr: 21021960 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-20 445A DATE: April 14, 2021 ORDER Entitlement to service connection for degenerative disc disease and degenerative arthritis of the lumbar spine is granted. FINDING OF FACT The Veteran’s degenerative disc disease and degenerative arthritis of the lumbar spine began during active service. CONCLUSION OF LAW The criteria for service connection for degenerative disc disease and degenerative arthritis of the lumbar spine are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2001 to August 2002 and January 2003 to January 2005. This case is before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran testified at a Board hearing before a Veterans’ Law Judge no longer with the Board. The transcript of the hearing has been associated with the record. The Veteran was notified of his right to request a new hearing in February 2021; the Veteran did not respond within 30 days of receipt of the letter, so the Board will proceed with the case as is. The Board remanded this matter for further development in July 2018, November 2019, and August 2020. The Veteran contends his lumbar spine disability is secondary to his service-connected heel spurs; the back pain commenced around the same time he was given a cast for his left heel spur. He also believes his back pain began when he was in Iraq from falling from the tanks and sleeping on the ground. During the May 2018 hearing, the Veteran noted he did not report back pain because it seemed trivial compared to his heel spur issue or the injuries of others in Iraq; also, his back and ankle pain are difficult to distinguish because his sciatica radiates pain from his left ankle to lower back. Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation while in active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Lay evidence, when credible, is competent to establish the presence of continuity of symptomology for a claimed disability during and since separation from active service and may provide sufficient support for a claim of service connection. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). The absence of treatment shown within service treatment records is an insufficient rationale for a negative nexus opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A VA examiner’s failure to consider the veteran’s testimony when formulating his or her opinion renders that opinion inadequate. Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. The record contains a competent diagnosis of degenerative disc disease, degenerative arthritis of the spine; accordingly, competent evidence of a current disability is found. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a). See Walker, 708 F.3d at 1338. During service, the Veteran continuously complained of musculoskeletal pain, particularly due to his left heel bone spur, and an April 2004 evaluation marked “yes” and “no” regarding whether the Veteran had recurrent back pain or any back problem. A December 2004 examination during service noted the Veteran’s back and gait were normal. In September 2005, within a year after discharge from service, the Veteran was treated for worsening lower back pain at a VA Medical Center. The record indicates x-rays of the lumbar spine at that time were normal. Following x-rays taken in September 2009, degenerative disc disease was diagnosed. In November 2009, the Veteran had surgery to repair a herniated nucleus pulposus in his lumbar spine. A March 2010 VA examiner found no relationship between the Veteran’s heel spurs and the development of degenerative disc disease. The examiner noted the development of degenerative disc disease is a process that takes many years to occur and highlighted the Veteran’s career as an electrician involves twisting and turning of the back. The July 2019 VA examiner opined the Veteran’s degenerative disc disease was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that a review of service medical record shows no documentation of a back condition in the service to support the Veteran’s contention that he fell off tanks multiple times and slept in uncomfortable areas, which contributed to his current back disability. The July 2019 VA examiner also opined it is less likely than not that the Veteran’s degenerative disc disease at L5-S1 is proximately due to, the result of, or aggravated by his service-connected calcaneal spur with achilles tendonitis. The examiner explained that the onset of the Veteran’s degenerative disc disease and his sciatica were from his electrical contractor job, as a review of the medical record shows that the Veteran presented to the VA in April 2009 and reported he had to do more of the physical work during the economic slow-down. In June 2009, the Veteran reported acute onset of lower left back pain for the past five days and some minor sciatica. The examiner also noted, according to the medical literature, heel spurs are not known to cause degenerative disc disease. The July 2019 examiner provided an addendum opinion in November 2019, which outlined the Veteran’s medical history and the general cause of degenerative disc disease, such as how excessive pressure or injuries to the disc can cause the injury to the annulus, which eventually can cause a narrowing of the disc space between the two vertebrae. An August 2020 VA examiner noted he reviewed the July 2019 and November 2019 medical opinions and found them to be thorough and keeping with the concept of a well-thought-out opinion in a reasonable time; thus, he had nothing further to add. The Board acknowledges the VA examiners’ opinions that it is less likely than not that the lumbar spine disability had its onset in or is otherwise related to the Veteran’s periods of service or service-connected calcaneal spur with achilles tendonitis, but assigns those opinions diminished probative weight as they fail to discuss the Veteran’s contention that he fell off tanks multiple times and slept in uncomfortable areas while in service, or address the Veteran’s reports of back pain shortly after service in 2005. See Stefl, 21 Vet. App. at 124. Four VA examiner opinions regarding the etiology of the lumbar spine disability with a notice of the adequacy requirements were solicited. Still, all the opinions were nevertheless inadequate to the extent that they failed to consider the Veteran’s lay statements and were only based on the absence of treatment evidence within the service treatment records. See Miller, 32 Vet. App. at 257; Buchanan, 451 F.3d at 1337. The Veteran has described experiencing symptoms of back pain since service, the record contains evidence of lower back pain shortly after discharge in 2005, and those symptoms are attributed to degenerative disc disease, as VA examiners diagnosed in 2009. Inasmuch as the sole basis for the negative nexus opinions is the lack of medical documentation, it is reasonable to assume that had the examiners considered the Veteran’s lay statements, they would have provided a positive nexus. Again, the Veteran perfected this appeal six years ago, and both the Board and RO have attempted on numerous occasions to have the VA examiners consider the lay evidence of record. As a chronic condition, any subsequent manifestations of the degenerative disc disease are service connected unless attributable to intercurrent causes. Although the Veteran worked as an electrician after service, the record does not demonstrate the Veteran suffered an injury through his post-service work; indeed, the March 2010 examiner noted degenerative disc disease is a process that takes many years, and the July 2019 examiner noted excessive pressure or injuries to the disc can cause the injury to develop into degenerative disc disease. Given that post-service treatment records contain no evidence of an injury, no intercurrent cause has been shown in this case. Any doubt on the material issue of nexus is resolved in the Veteran’s favor, and the claim of service connection for a lumbar spine disability is granted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.