Citation Nr: 21025239 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-02 842 DATE: April 27, 2021 ORDER Entitlement to service connection for a thoracolumbar spine disability, to include degenerative changes of the thoracic spine, lumbar spondylosis, and lumbar spine degenerative disc disease (DDD), is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his thoracolumbar spine disability had its onset in service and has been continuous since separation. CONCLUSION OF LAW The criteria for service connection for a thoracolumbar spine disability, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1999 to January 2000, from October 2003 to July 2004, and from December 2008 to December 2009. This case is before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office. In October 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the evidentiary claims file. In January 2020 the matters were remanded to the agency of original jurisdiction (AOJ) for VA examination. In June 2020, the Board again remanded for additional development and a VA addendum opinion. Per the June 2020 Remand, the AOJ requested the Veteran provide medical releases for all treatment related to his thoracolumbar spine disability, outstanding San Juan VA medical center (MC) treatment records were associated with the evidentiary claims file, and an August 2020 VA examiner reviewed the Veteran’s VA file and medical records to provide the addendum report. Thus, there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). As an initial matter, the Board notes that a claim for a disability includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Thus, in light of the Veteran’s description of his symptomatology, the AOJ’s analysis of the more restrictive issue in the statement of the case, and the diagnoses of record, the Board recharacterized the claim to consider entitlement to service connection for the broader claim of a thoracolumbar spine disability, to include degenerative changes of the thoracic spine, lumbar spondylosis, and lumbar spine DDD. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. Service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Also, a disability that is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Further, Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In relevant part, 38 U.S.C. § 1154 (a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required if the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Facts and Analysis The Veteran asserts his back condition is related to active duty service and testified he originally injured it during basic training in 1999, re-injured it after being thrown around a cargo ship in 2003 during bad weather, and again suffered a final back injury during a Humvee rollover accident in 2008 while training. See October 2019 Board hearing transcript. The Veteran’s service treatment record (STR) documents physical therapy for lower back pain, diagnosed at herniated L4-L5 disc in November 1999. An October 2008 Statement of Medical Examination reflects that the Veteran was evacuated from the Camp Santiago Training Center for emergency care following a rollover accident. See DA Form 2173, dated October 25, 2008. A July 2009 STR shows neck pain and stiffness, diagnosed as neck strain, after a Humvee accident. The Veteran was noted to lose consciousness and be pulled from the vehicle. In March 2011 the Veteran was evaluated for traumatic brain injury. He indicated pain in the last 30 days located in the head (headaches), neck, and low back and reported treatment with pain medication for the symptoms while deployed to Cuba. See San Juan VAMC treatment record, dated March 11, 2011. Further, pain was noted to limit the activities he could perform, and that symptoms had worsened since his last deployment. Id. Another San Juan VAMC treatment record from October 2012, reflects the Veteran had an X-ray for his thoracic spine after a sudden movement with a refrigerator caused sudden pain in the neck and upper back. The radiology report found multilevel mild thoracic spondylosis with mild narrowing of several disc spaces, and the diagnosis of degenerative changes was rendered. The cervical and thoracic spine was tender upon palpitation. A December 2013 physical medicine treatment record reflects the Veteran attributed his chronic cervical, thoracic, and L-Spine pain to the Humvee rollover. Moreover, in June 2014 the Veteran was noted to have “pain at all of his back since 2008 but more at middle and lower back since a year ago." See San Juan VAMC physical therapy treatment record, dated June 2, 2014. The Veteran described the pain as constant but increased at awakening and with prolonged standing and walking. Id. The Veteran underwent three VA examinations for the back. All the examiners provided negative nexus opinions, noting there was no evidence of complaints or treatment for a thoracic spine condition until 2012, three years after service, and therefore, the thoracic spine disability was not incurred in or related to service. As further rationale, the June 2013 examiner also cited a September 2011 polytrauma evaluation that documented knee, skin, cognitive, and psychological complaints but did not note back problems. During the February 2020 examination a second diagnosis of lumbar spondylosis, lumbar spine DDD was rendered for the Veteran. The rationale for the negative nexus only addressed the period of active service related to the rollover accident. The examiner did not acknowledge the Veteran’s entire active service history and other reported injuries. Considering the Veteran’s noted lumbar disability during active service, the August 2020 examiner explained that the thoracic and lumbar spine are two different anatomical areas with different bony structures and nerve supplies that are unrelated to each other. Therefore, the examiner concluded it was less likely than not that the conditions were related. The examiner did not specifically address the Veteran’s assertion that his current pain is in the same location as a big lump that occurred after the Humvee rollover, as was requested by the June 2020 Remand. The Board notes that during the pendency of this appeal, the Veteran was service-connected for cervical spine degenerative joint disease (DJD) based largely on a positive nexus linking the disability to the 2008 Humvee rollover. See November 2015 Rating Decision. The matter was originally included on the Notice of Disagreement filed in November 2013 regarding the instant appeal for the back disability. Citing only the Humvee accident and a sick slip from 2009 that showed neck pain, the examiner concluded that the Veteran’s cervical DJD findings were at least as likely as not a sequela of his neck injuries during his military service. See April 2015 VA cervical spine VA examination. The Board also notes that the AOJ, similarly, granted the Veteran’s claims of service connection for TBI and post-concussion headaches upon appeal positive nexus reports linking the disabilities to the Humvee rollover. See April 2015 TBI VA examination. At the October 2019 hearing the Veteran testified that he hit his back and head inside the Humvee when he was pulled back into the vehicle while it was rolling over. He recalled passing out and waking up outside the Humvee, having been pulled out by the crew. See October 2019 Board Hearing, at 5. He reported that his VA doctor told him his back injury could only have occurred through a vehicle accident, but the Veteran was unable to obtain a written statement. Further, the Veteran noted that the pain between his shoulders was in the same location as “a big lump” after the rollover. Id. at 6. Under the circumstances of this case and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that the evidence is in equipoise to show chronic in-service symptoms and continuous post-service symptoms relating to the Veteran's thoracolumbar spine disability. Initially, the Board notes that there is a current diagnosis of degenerative changes of the thoracic spine, and lumbar spondylosis, lumbar spine DDD. As noted, the Veteran had an in-service Humvee rollover accident. Thus, the first and second elements of service connection are established. This case turns on the remaining element of service connection, which is whether the Veteran's thoracolumbar spine disability is related to his military service. The Veteran described continued thoracolumbar spine symptoms, including complaints of back pain and difficulty with activities like prolonged walking, as having occurred since active duty service, to include the Humvee rollover accident. He is competent to report that he experienced symptoms from his thoracolumbar spine disability. His testimony is credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record. As noted, VA thoracolumbar spine examiners in June 2013, February 2020 and August 2020 opined that it was less likely than not that the Veteran's back disability was incurred in or caused by service, to include the Humvee rollover. However, an April 2015 VA cervical spine examiner found the rollover accident and evidence of neck pain one year later was sufficient to opine that the current cervical spine disability was at least as likely as not resulting from the rollover. Although the three thoracolumbar spine VA examiners opined the thoracolumbar spine disability was not related to the Veteran’s service, each appeared to rely largely, if not entirely, on medical evidence or the lack thereof, and did not provide adequate consideration to the Veteran's competent and credible account of in-service onset and corresponding symptomatology. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Further, the examiners fail to account for the March 2011 TBI evaluation, where the Veteran noted having low back pain and identified that it had worsened since his last deployment. Inaccurate or incomplete reasoning and analysis supports the respective examination opinions because there is competent and credible evidence to the contrary. See Coburn v. Nicholson, 19 Vet. App. 427 (2006) (affirming the holding in Reonal v. Brown, 5 Vet. App. 458 (1993), that a medical opinion based on an inaccurate factual premise is of no probative value). As such, the Board affords the June 2013, February 2020 and August 2020 VA opinions less probative weight. Based on the foregoing, the Board finds that there is an approximate balance of positive and negative evidence regarding whether the Veteran’s thoracolumbar spine disability was caused by his in-service Humvee rollover accident. Further, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. The Board acknowledges that the Veteran asserted alternative theories of service connection for his back disability to include secondary service connection from his nonservice-connected lumbar spine disability. However, as the Board finds the theory of direct service connection is applicable for the Veteran's issue on appeal, it is not necessary to address alternative theories for entitlement. In sum, resolving all reasonable doubt in favor of the Veteran, the Board finds that his thoracolumbar spine disability had its onset in service and has been continuous since separation. Thus, service connection for a thoracolumbar spine disability, to include degenerative changes of the thoracic spine, lumbar spondylosis, and lumbar spine DDD, is granted. See 38 U.S.C. § 5107 (b). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Gipson, 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.