Citation Nr: 21022299 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 13-33 499 DATE: April 15, 2021 ORDER Entitlement to service connection for a back disability, to include degenerative joint disease, degenerative disc disease, and the residuals of laminectomy, is granted. REMANDED Entitlement to service connection for a right thigh/hip disability is remanded. FINDING OF FACT The Veteran’s current back disability, to include degenerative joint disease, degenerative disc disease, and residuals of laminectomy, is at least as likely as not the result of an injury incurred in active service. CONCLUSION OF LAW The criteria for service connection for a back disability, to include degenerative joint disease, degenerative disc disease, and residuals of laminectomy, have been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1967 to February 1977. The issue of service connection for a back disability comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran appeared at hearing before the undersigned in October 2016. A transcript of the hearing is of record. In a November 2017 remand, the Board noted its finding that previously unconsidered service records were associated with the claims file since a March 2009 Board decision that denied reopening of the Veteran’s claim, requiring reconsideration of the claim under the provisions of 38 C.F.R. § 3.156(c). The issue of service connection for a back disability was most recently before the Board in December 2020, when it was remanded for a new nexus opinion due to the Veteran’s submission of previously unconsidered private treatment records dating back to the late 1970s. The Agency of Original Jurisdiction (AOJ) obtained an additional opinion, as directed, and has now returned the matter to the Board for further appellate consideration. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The nexus requirement for a chronic disease listed in 38 C.F.R. § 3.309(a) can be established on a presumptive basis if the condition manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The nexus requirement can also be established by a continuity of symptomatology when a condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A condition is considered to be “noted during service” when there is symptoms indicative of, but not dispositive of, a chronic disease. Id. at 1339. When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here, the current disability requirement for the Veteran’s claim has clearly been met. He has significant degenerative changes of the lumbar spine, to include both degenerative joint disease and degenerative disc disease, and he also underwent an L-5/S-1 laminectomy shortly after his separation from active service. There is also evidence of an in-service injury. The available service treatment records show the Veteran was involved in an in-service automobile accident in November 1973 and suffered a back injury. The Veteran initially complained of pain in the thoracic area following the accident but began to experience lower back pain and spasms shortly after the accident. The Veteran has reported he has experienced continuous lower back pain and other symptoms since the November 1973 injury. The only issue that remains is whether there is a nexus between the current disability and the in-service injury. Initially, the Board notes it finds a chronic condition was “noted in service.” The Veteran was initially given a rule-out diagnosis for a possible spinal fracture following the November 1973 injury. Although initial x-rays of the Veteran’s thoracic spine were negative, he began to complain of lower back pain and spasms shortly thereafter. The available service treatment records document treatment for several weeks after the initial injury. In August 1975, the Veteran was again seen for back pain and spasms at which time the treating provider noted the Veteran has “back problems”, which the Board finds sufficient to support a finding of a notation of a chronic condition in service, although not dispositive of a finding of a chronic disease within the meaning of 38 C.F.R. § 3.309(a). The Board notes the Veteran’s lumbar spine degenerative changes constitute arthritis and therefore confirm the presence of a chronic disease within the meaning of 38 C.F.R. § 3.309(a) after separation from service. The Board also finds the Veteran’s reports of continuous back pain since the initial injury are credible. The Veteran’s reports have remained remarkably consistent for more than 40 years since he filed his initial claim. He has readily acknowledged his disability remained undiagnosed until a post-service event in which he slipped and fell in May 1979, but he has consistently maintained that he experienced continuous back pain since the initial November 1973 injury. He has further reported he sought frequent treatment for back pain in service. Although this is not explicitly documented in service treatment records, the Board notes the Veteran’s service treatment records appear to be incomplete, as noted in the AOJ’s initial December 1979 rating decision regarding the issue of service connection for a back disability. When service treatment records are unavailable, VA has a heightened duty to consider the application benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (indicating the Board has a heightened duty to explain its findings and conclusions and to carefully consider the benefit-of-doubt rule when a claimant’s records have been lost or are otherwise unavailable). The Veteran is competent to report observable symptoms like pain. As previously noted, the August 1975 service treatment note regarding “back problems” is suggestive of a chronic condition rather than an acute injury. There are extensive treatment records documenting back symptoms from the late 1970s to the present. In light of the heightened duty to carefully consider the benefit-of-doubt rule, the Board finds there is evidence to support a nexus to service based on a continuity of symptomatology in this case. See Walker, supra. There is also expert medical evidence to support a nexus finding. In July 2006, the Veteran’s treating physician, B.D., M.D., provided a positive nexus opinion attributing the Veteran’s current disability to the in-service November 1973 injury. In the opinion, B.D., M.D., acknowledged the Veteran’s post-service laminectomy but nevertheless concluded continuous pain since the initial in-service injury supports a nexus finding in the Veteran’s case. The July 2006 opinion is also supported by an August 2010 opinion from a private physician, J.M., D.O., who explained it is reasonable to conclude the Veteran’s current disability is the result of the initial injury given he was asymptomatic before the injury yet experienced continuous symptoms thereafter. VA has obtained numerous opinions regarding the issue of service connection for a back disability since the Veteran initially filed his claim in October 1979. While all these opinions contain a negative nexus conclusion, the Board finds the probative value of the opinions is insufficient to outweigh the evidence that supports a positive nexus finding based on a continuity of symptomatology because the examiners failed to adequately consider the Veteran’s credible and competent reports of continuous symptoms since his initial November 1973 in-service injury. The VA opinions are similar in that they attribute the Veteran’s current disability to his reported post-service fall rather than the in-service automobile accident primarily because his reports of an in-service continuity of symptomatology are not documented by service treatment records, which is unconvincing to the Board because there are also no contemporaneous treatment records documenting the post-service fall or any related treatment. The only evidence regarding the post-service fall is the Veteran’s lay report of his medical history, as first documented in his initial October 1979 back examination; it seems inconsistent to only accept the Veteran’s lay reports when they weigh against his claim. The Board acknowledges the claims file includes a few treatment notes from late 1979 from D.S., M.D., but these records primarily focus on a cervical spine injury rather than the claimed back disability. If the Veteran truly lacked credibility, he could have simply not reported the post-service fall and relied solely on the documentation of the in-service back injury in the available service treatment records, which goes well beyond a single entry for episodic care for an acute injury that quickly resolved; however, it appears he has reported an accurate history of the claimed back disability to include both a continuity of symptomatology since the initial November 1973 injury and the subsequent post-service fall, which the Board finds should reflect favorably on his credibility rather than negatively. In sum, the Board finds all the elements required to establish service connection for a back disability have been met in this case. The Veteran has a well-documented current back disability, to include degenerative joint disease, degenerative disc disease, and residuals of laminectomy. Service treatment records clearly show an in-service back injury with a notation of lingering “back problems” after the initial injury. The evidence regarding a continuity of symptomatology, to include the supporting medical opinions submitted by the Veteran, is at least as probative as the negative nexus opinions VA has obtained regarding his claim. Resolving reasonable doubt in the Veteran’s favor regarding the nexus element, the Board finds service connection for a back disability, to include degenerative joint disease, degenerative disc disease, and the residuals of laminectomy, is warranted. See Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). REASONS FOR REMAND In December 2020, the Board remanded the issue of service connection for a right thigh/hip disability with instructions for the AOJ to obtain a secondary service connection opinion regarding the claim if a nexus to service was established for the Veteran’s service connection claim for a back disability. As explained above, the Board finds service connection for back disability is warranted; therefore, a secondary service connection opinion is now necessary regarding the Veteran’s service connection claim for a right thigh/hip disability. Further, upon reviewing the Veteran’s service treatment records in conjunction with its analysis of his reports of a continuity of back symptomatology, the Board finds there is in-service evidence of right hip/thigh symptoms that may have been previously overlooked or misinterpreted. On November 4, 1975, the Veteran sought treatment for what appears to be right leg pain, although the provider’s handwriting is not entirely clear. It appears the treating provider noted “pain medial aspect R [sic] thigh radiating downward” but again the provider’s notation is difficult to read. Nevertheless, the Board intends to resolve reasonable doubt in the Veteran’s favor in this regard and finds there is also evidence to support a finding of right hip/thigh symptoms in service, requiring a direct service connection opinion as well. The matter is REMANDED for the following action: Schedule the Veteran for an examination regarding his service connection claim for a right thigh/hip disability. The selected examiner must provide an opinion addressing whether the Veteran has a right thigh/hip and/or leg disability that is at least as likely as not (50 percent probability or greater) the result of an in-service disease or injury; or proximately due to, or aggravated by, his now service-connected back disability, to include degenerative joint disease, degenerative disc disease, and residuals of laminectomy. In the context of direct service connection, the examiner must address the November 1975 service treatment note, which appears to relate to pain radiating down the Veteran’s right leg from the thigh area. The secondary service connection opinion must address both causation and aggravation to be deemed adequate. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. (Continued on the next page)   The examiner must be further advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.