Citation Nr: 21022888 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-07 500 DATE: April 19, 2021 ORDER Entitlement to service connection for low back condition with mild lumbar degenerative disc disease (DDD) (low back disability) is granted. REMANDED Entitlement to service connection for right knee condition, to include recurrent joint effusion, is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for rectum disorder, to include bleeding, hemorrhoids, perianal dermatitis, hematochezia, and as secondary to service-connected low back disability, is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his low back disability is related to his active military service. CONCLUSION OF LAW The criteria for service connection for low back disability are met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.  REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1979 to June 1993 and from March 1994 to June 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).   In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record.  The Veteran’s appeal has been advanced on the docket.  38 U.S.C. § 7107(a)(2).  To more accurately reflect the scope of the Veteran’s claims, the issues have been recharacterized as shown on the title page. Entitlement to service connection for low back disability. The Veteran contends that his low back disability is related to his active military service. For the reasons that follow, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases, to include arthritis, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Turning to the evidence of record, the Veteran has a current diagnosis of degenerative disc disease. See December 2011 VA examination. Thus, the first element of service connection has been established. At the March 2021 Board hearing, the Veteran testified that he injured his back in service, as a result of a ladder fall incident onboard USS Waddell DDG-24. A review of the Veteran’s service treatment records (STRs) reveals treatment for a low back injury in September 1988 and the incident description consistent with his testimony. An X-ray of the lumbar spine conducted at that time showed a lower edge defect at L4 level. The Veteran was diagnosed with a soft tissue injury and was prescribed pain medication. At his separation examination, the Veteran also reported recurrent back pain from back injury on the ship, although the examiner noted lower back pain on ship - resolved. See June 1993 Report of Medical History. As such, the in-service incurrence element has been met. Turning to the third element of service connection, a causal nexus, when resolving all reasonable doubt in favor of the Veteran, the Board finds this element also has been established. The Veteran has generally contended that he has had issues with his low back since service. See March 2021 hearing transcript. The Veteran also reported that he began receiving treatment for his low back disability in 1994. The Veteran underwent a VA examination for his low back disability in December 2011. As noted, the examiner diagnosed the Veteran with a mild lumbar spine DDD. The examiner opined that the Veteran’s low back disability is not related to his active duty service because the lumbar spine DDD is an incidental finding and consistent with natural age. However, the examiner did not take into consideration the Veteran’s lay statements regarding low back pain treatment immediately post-service in 1994. As such, the Board affords the December 2011 VA opinion little probative weight. The evidence of record also includes private opinions from the Veteran’s treating physicians. In an October 2012 opinion, a private physician, Dr. L.P., noted that the Veteran’s has been receiving treatment for his low back pain since September 1994. Dr. L.P. noted that X-rays at that time indicated a previous fracture in the L4-L5 region of the spine. No new fractures were reported. The Veteran was diagnosed with muscle spasms caused by a previous injury to the L4 region. Dr. L.P. noted that the recurring low back pain has limited the Veteran’s ability to work and exercise at times. The Veteran was treated with a muscle relaxer, a pain reliever, rest, and physical therapy. Dr. L.P. noted that the Veteran continued to have occasional recurrences of low back pain (2-3 times a year) while in her care until 2007, brought on by normal physical activity. Further, in a May 2019 opinion, a private treating provider, D.O. B.J., noted that the Veteran has been in his care from 2009 and has had recurrent back problems since that time. D.O. B.J. opined that the Veteran developed pars defect at L4-5 spine level as a result of his injury in the military. He noted that pars defect effectively creates instability in the Veteran’s back, resulting in episodes of frequent back pain. D.O. B.J. noted that the back pain occurs on the basis of normal daily activities, without new induced injury. He also noted that at times of exacerbation, the Veteran has a decreased ability to perform activities of daily living. D.O. B.J. indicated that while the Veteran’s prognosis is reasonable, his recurrent back issues require physical and medical intervention and treatment at intermittent timeframes, likely for the rest of his life. In light of the foregoing, the Board will resolve all reasonable doubt in favor of the Veteran and find that service connection is warranted. The probative evidence of record that remains shows that the Veteran injured his low back in service. He has credibly reported experiencing low back issues since service and has consistently reported seeking treatment as early as in 1994. His post-service treatment records also are devoid of any evidence of a post-service back injury. Multiple private physicians have attributed the Veteran’s current low back disability to his service, notably two of his private treating providers, Dr. L.P. and D.O. B.J. Accordingly, resolving all reasonable doubt in favor of the Veteran, service connection for a low back disability is granted. REASONS FOR REMAND 1. Entitlement to service connection for right knee condition, to include recurrent joint effusion. The Veteran asserts that his right knee condition is related to his active military service.  Upon review of all evidence of record, the Board finds that additional development is needed prior to adjudication of the claim.  In this regard, the Veteran’s STRs show right knee injury and treatment in June 1992. While the in-service X-ray of the right knee revealed no meniscal tear, the Veteran was diagnosed with Rt knee tendinitis and he was prescribed a knee brace. See July and September 1992 STRs. A July 1992 and October 2010 X-rays revealed a small effusion. The Veteran underwent a VA examination for his right knee condition in December 2011. The examiner noted that despite subjective complaints, there is no objective evidence to support a current diagnosis of the right knee condition at this time. The examiner based this opinion on the fact that the Veteran was not diagnosed with a permanent disability in service. The examiner also noted that the July 1992 X-ray of the right knee showed small joint effusion but did not discuss these findings in terms of a recurrent issue. As noted, the evidence of record shows the Veteran’s ongoing joint effusion issues, consistent with his right knee pain and swelling complaints since service. As such, a new VA examination is needed to address these findings and the impact that a recurrent joint effusion may have on the Veteran’s right knee condition. Further, in his May 2019 opinion, D.O. B.J. noted that the Veteran has been in his care for right knee condition since 2009. However, a review of the Veteran’s claims file shows that the noted treatment records are not included in the file. There are also no VA treatment records associated with the file. Upon remand, the agency of original jurisdiction (AOJ) must make efforts to obtain any VA and private treatment records that may be outstanding, pertinent to the Veteran’s right knee condition. See Culver v. Derwinski, 3 Vet. App. 292 (1992) (noting that VA has a duty to obtain all pertinent medical records which have been called to its attention by the appellant and by the evidence of record). 2. Entitlement to service connection for right ear hearing loss. The Veteran asserts that his right ear hearing loss is related to his active military service.  Upon review of all evidence of record, the Board finds that additional development is needed prior to adjudication of the claim.  Specifically, the Veteran is service connected for left ear hearing loss and tinnitus. See March 2012 rating decision. The AOJ granted service connection based on the December 2011 VA examination report that provided a positive nexus opinion as to the Veteran’s left ear hearing loss and tinnitus. The in-service noise exposure has been conceded due to the Veteran’s military occupational specialty (MOS). At the time of the examination, the Veteran did not have right ear hearing loss for VA purposes. See 38 C.F.R. § 3.385. At the March 2021 Board hearing, the Veteran testified that his right ear hearing is the same as his service-connected left ear hearing loss. He and his representative also reported that the Veteran was the weapons officer in service, using his right hand to fire guns, which impact his right ear hearing. The Veteran testified that his right ear hearing issues affected his ability to conduct meetings in the work environment. The Veteran’s claims file shows no recent audiological examinations or treatment related to his right ear hearing loss. VA’s duty to assist includes the conduct of a thorough and comprehensive medical examination. Green v. Derwinski, 1 Vet. App. 121, 214 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). As such, a new VA examination is needed to address the Veteran’s and his representative’s statements and to ascertain whether the Veteran has right ear hearing loss as defined by VA regulation. 3. Entitlement to service connection for rectum disorder, to include bleeding, hemorrhoids, perianal dermatitis, hematochezia, and as secondary to service-connected low back disability. The Veteran asserts that his rectum condition is related to his active military service.  Upon review of all evidence of record, the Board also finds that additional development is needed prior to adjudication of the claim.  Significantly, the Veteran underwent a VA examination in December 2011. The examiner opined that despite subjective complaints, there is no objective evidence to support a diagnosis related to the Veteran’s bleeding rectum condition. The examiner’s opinion is inconsistent with the evidence of record. Specifically, the Veteran’s STRs show complaints and treatment for hemorrhoids in June 1992. Related issues were also noted at his separation examination in June 1993. The Veteran’s post-service treatment records show recurring complaints and treatment for hemorrhoids, perianal dermatitis and hematochezia. In addition, at the March 2021 Board hearing, the Veteran testified that his bleeding rectum issues began when he started taking medication for his recurrent low back issues. As such, a new examination is needed to address the Veteran’s lay and medical evidence of record, to include a secondary opinion addressing the relationship, if any, between the Veteran’s service-connected low back disability, to include prescribed medication, and his rectum condition. The matters are REMANDED for the following action: 1. Associate with the claims file all outstanding VA treatment records pertaining to the Veteran’s right knee condition, right ear hearing loss and rectum condition. 2. Contact the Veteran to secure the proper authorizations where necessary and make arrangements to obtain all the records of treatment or examination for his right knee condition, right ear hearing loss and rectum condition from all the sources identified by the Veteran which are not already on file, including right knee treatment records from D.O. B.J. Any and all information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After completing all of the above, schedule the Veteran for a VA examination to determine the nature and etiology of his right knee condition. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examination should include any diagnostic testing (including X-rays) or evaluation deemed necessary for the specific claimed disability. The VA examiner should respond to the following inquiries: (a) Whether the Veteran has a current diagnosis of the right knee condition. If no current diagnosis is found, the examiner must address the impact that a recurrent joint effusion and other symptoms may have on the Veteran’s earning capacity. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s right knee condition, to include joint effusion, had its onset in, or is otherwise related to, active duty. In providing this opinion, the examiner must address all of the evidence of record, to include the Veteran’s in-service right knee injury and July 1992 and October 2010 X-rays showing small joint effusion and the statements of B.J., D.O. and L.P., M.D. When opining on the likely etiology of the Veteran’s right knee condition, the examiner must also address the Veteran’s lay contentions. A complete rationale for all opinions expressed and conclusions reached must be provided.   4. Schedule the Veteran for a VA examination with an audiologist to determine the nature of his current right ear hearing loss. The entire claims folder must be reviewed by the examiner, including a copy of this Remand. All appropriate testing must be conducted. The VA examiner must respond to the following inquiries: (a) Whether the Veteran has current right ear hearing loss for VA purposes. (b) If so, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s right ear hearing loss had its onset in, or is otherwise related to, active duty. The examiner must address the Veteran’s lay contentions, to include the conceded military acoustic trauma, i.e., the impact that the Veteran’s use of his right hand to fire guns in the military had on his right ear hearing. (c) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s right ear hearing loss is proximately due to or is aggravated by his service connected left ear hearing loss and/or tinnitus. The term “aggravation” in the above context refers to “any incremental increase in disability - any additional impairment of earning capacity -in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence.” A complete rationale for all opinions expressed and conclusions reached must be provided.   5. Schedule the Veteran for a VA examination to determine the nature and etiology of his current rectum condition, to include bleeding, hemorrhoids, perianal dermatitis and hematochezia. The entire claims folder must be reviewed by the examiner, including a copy of this Remand. All appropriate diagnostic testing must be conducted. The VA examiner must respond to the following inquiries: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s current rectum condition, to include bleeding hemorrhoids, perianal dermatitis and hematochezia, had its onset in, or is otherwise related to, active service. In providing this opinion, the examiner must address all relevant evidence of record, to include the Veteran’s complains and treatment for hemorrhoids in service and post-service recurring complaints and treatment for hemorrhoids, perianal dermatitis and hematochezia, as well as the statements of B.J., D.O. and L.P., M.D. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current rectum condition, to include bleeding, hemorrhoids, perianal dermatitis and hematochezia, was caused or aggravated by his service-connected low back disability, including the impact any medication for the Veteran’s low back disability may have on the Veteran’s rectum condition. The term “aggravation” in the above context refers to “any incremental increase in disability - any additional impairment of earning capacity -in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence.” (Continued on the next page)   When opining on the likely etiology of the Veteran’s rectum condition, the examiner must also address the Veteran’s lay contentions. A complete rationale for all opinions expressed and conclusions reached must be provided.   C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, 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.