Citation Nr: 21026018 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-27 635 DATE: April 29, 2021 ORDER Entitlement to service connection for intervertebral disc syndrome (IVDS), lumbar spondylosis, and lumbar herniated nucleus pulposus, is granted. REMANDED Entitlement to service connection for interstitial lung disease (ILD) with chronic obstructive pulmonary disease (COPD) is remanded. FINDING OF FACT The Veteran’s IVDS, lumbar spondylosis, and lumbar herniated nucleus pulposus are at least as likely as not related to the Veteran’s in-service back injury. CONCLUSION OF LAW The criteria for service connection for IVDS, lumbar spondylosis, and herniated nucleus pulposus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1978 to February 1979, from August 1986 to October 1992 and from August 2007 to December 2010. He had additional reserve service between December 2010 and September 2013 in the Army National Guard. He received the Southwest Asia Service Medal, among other commendations. This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) denying service connection for IVDS and COPD. In September 2018, the Board remanded each of the matters on appeal back to the RO for further development, including to obtain medical treatment records from a private physician with the initials M.J. and to obtain adequate VA medical opinions on the claimed conditions. As to the lung conditions of COPD and ILD, although regrettable, additional remand is required for substantial compliance with the Board’s previous remand instructions as outlined below. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). As for the claimed back disability, while there has been only partial compliance with the Board’s remand directives, because the Board is granting the claim, there is no prejudice to the Veteran in adjudicating the claim based on the evidence of record. 1. Entitlement to service connection for a back disability. The Veteran contends that a lumbar spine injury during service is the root cause of his current back disability. See May 2014 Statement in Support of Claim; June 2016 Form 9. Specifically, he contends that he injured his back during his deployment to Afghanistan while lifting a cooler of drinks. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. When the preponderance of the evidence weighs against the claims of the Veteran, the claim will be denied on its merits, and when the preponderance of the evidence weighs for the claims of the Veteran, the claim will be granted on its merits. In those cases, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 54. In this case, the Veteran has current diagnoses of IVDS, lumbar spondylosis, and herniated nucleus pulposus as evidenced by VA examinations of October 2019 and June 2014, as well as December 2011 private treatment records. Service treatment records (STRs) dated August 2009, show that the Veteran complained of severe back pain after setting up for a cook-out. Evaluation noted that the injury caused him difficulty in standing erect, caused pain throughout range of motion, and was tender on palpation. The Veteran was provided heat packs and medication and restricted from lifting for seven days. Within a year of his discharge from this period of active service in December 2011, the Veteran sought additional medical treatment for having had several weeks of back pain. He could identify no apparent triggering event but noted to his provider that he had experienced low back pain in the past as well. He was assessed with multilevel lumbar spondyloarthropathy, most severe at L3-L4 and recommended to remain off work for 10 days, as well as arthritis changes in the spine. A subsequent December 2011 magnetic resonance imaging scan also documented IVDS and lumbar spondylosis and disc extrusion. The evidence of record contains several buddy statements from individuals who stated they had knowledge of the claimed back incident, or who had known the Veteran for many years before and after his entry to active duty in 2007. A May 2018 letter from A.A., indicates that he witnessed the Veteran hurt his back during the August 2009 mandatory Company event and accompanied the Veteran to the aid station for evaluation. A.A. states that the Veteran was able to complete the rest of his deployment but “the injury did limit his physical capabilities.” An August 2018 statement from J.C. indicates that he was the Veteran’s friend and coworker and noted that prior to leaving for active duty in 2007, the Veteran was able to perform his duties as a mail carrier with no limitations. He observed that after the Veteran returned in December 2010, he had back issues and it was difficult for the Veteran to carry out his job duties. A statement from M.T. indicates that the Veteran resided with him in December 2010 and M.T. recalled having to assist the Veteran with tasks such as lifting and yard work due to the Veteran’s back pain. These lay observations are competent as to the Veteran’s in-service back injury, and the Board finds them credible and probative as they are consistent with other lay and medical evidence of record. Following development on remand, VA received additional treatment records from the Veteran’s private physician, Dr. M.J., who had previously provided a letter opining that the Veteran’s chronic lumbar spasms and pain, lumbar herniated nucleus pulposus, lumbar facet-mediated pain, exacerbation of pre-existing lumbar degenerative disc disease as a result of service-related trauma, and exacerbation of lumbar spondylosis with resultant pain as a result of his service-related trauma was etiologically related to the Veteran’s military service. While the opinion letter is brief and without extensive rationale, review of Dr. M.J.’s treatment records shows that Dr. M.J. had treated the Veteran for his complaint of back pain since October 2012, and the Veteran’s initial report regarding the onset of his pain in these records is consistent with other evidence of record. Given the additional evidence of ongoing back pain following the August 2009 in-service event and the citation to this injury in Dr. M.J’s records, the Board finds Dr. M.J.’s opinion to provide an adequate nexus between the Veteran’s service and current IVDS, lumbar spondylosis, and herniated nucleus pulposus. Nevertheless, given that there is no evidence to distinguish between all of the symptoms of the Veteran’s back disabilities, a separate decision as to entitlement to service connection for back disability other than IVDS, lumbar spondylosis, and herniated nucleus pulposus of the lumbar spine is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). Thus, in applying the benefit of the doubt doctrine, the Veteran’s back symptoms must, therefore, be attributed to his now service-connected IVDS, lumbar spondylosis, and herniated nucleus pulposus of the lumbar spine. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). The Board notes that the October 2019 VA examination obtained on remand provides a negative etiology opinion, however, the Board finds this opinion inadequate and therefore not probative. The examiner noted only a lower back strain in 1989 that resolved and made no comment about the 2009 injury or accompanying records. A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The examiner also summarily concluded that Dr. M.J.’s opinion was “in error” and that the Veteran’s back condition was due to an unidentified “non-service-related injury.” Due to these inadequacies, the Board finds Dr. M.J.’s etiology opinion more persuasive. In sum, the evidence shows that the Veteran competently reported experiencing the onset of back pain during service, and his STRs confirm the occurrence of the claimed event. Less than one year after discharge from this period of active service he sought additional treatment for back pain and was diagnosed with arthritis in the lumbar spine within one year of service that manifested to a compensable degree. In that regard, under Diagnostic Code 5003 Degenerative arthritis, other than post-traumatic, arthritis confirmed by X-ray is compensable by a 10 percent rating if limitation of the motion of the back is not compensable under the appropriate diagnostic code. Thus, the Veteran is entitled to the presumptive service connection for arthritis, a chronic disease pursuant to 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, the evidence confirms the existence of a current IVDS, lumbar spondylosis, and herniated nucleus pulposus disabilities with positive medical etiology opinion and there is no credible evidence of an intercurrent cause of this back condition. As such, and in resolving all reasonable doubt in the Veteran’s favor, the Board finds that a grant of service connection for IVDS, lumbar spondylosis, and herniated nucleus pulposus is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for ILD with COPD is remanded. The Veteran contends that his respiratory condition was worsened by his military service as a fuel transport driver due to his daily exposure to fuel fumes and burn pits. See June 2016 Form 9. In September 2018, the Board remanded this matter for additional development, however, the October 2019 VA examiner failed to provide an adequate opinion regarding the etiology of the condition and failed to address the Veteran’s assertion that his lung condition was caused or worsened by his exposure to burning jet fuel and burn pits. A buddy statement of record from Sgt. K.H. indicates that while he and the Veteran were in Afghanistan, they used JP-8 jet fuels to cook their meals when their dining facility was closed down, and reported that their work area was approximately 150 yards away from a burn pit. The medical evidence of record fails to address this evidence. As such, remand is necessary to obtain an addendum opinion addressing the above. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from a qualified physician (preferably with experience with ILD and/or COPD conditions) regarding the claimed lung conditions. If a new examination is deemed necessary, one should be provided. Ensure that a copy of this remand and the prior remand of September 2018 is available for the physician’s review. 2. After review of the evidence of record, including records from all private medical providers and STRs, the examiner should provide an opinion on the relationship between the Veteran’s ILD and COPD and his service, to include exposure to jet fuel (including from use during meal-cooking) and to burn pits during his service. Specifically, the physician must address the following: (a.) Is it is “at least as likely as not” (50 percent or greater probability) that any current lung disability was caused by or aggravated by an in-service injury, event or disease during the Veteran’s first period of active service from October 1978 to February 1979 and/or his second period of service from October 1986 until October 1992? (b.) Did a lung disability, to include ILD and COPD, “clearly and unmistakably” (obviously or manifestly) exist prior to the Veteran’s entry into his third period of service from August 2007 to December 2010? (c.) If a lung disability, to include ILD and COPD, clearly and unmistakably existed prior to the third period of active service from August 2007 to December 2010, was it “clearly and unmistakably” (obviously or manifestly) not aggravated by military service? In this special context, “aggravation” has occurred where there is an increase in disability beyond the natural progress of the disability. (d.) If the answer to the questions above is no, then answer whether it is “at least as likely as not” (50 percent or greater probability) that any current lung disability was caused by or aggravated by an in-service injury event or disease during the third period of service from August 2007 to December 2010, to include due to exposure to jet fuel while cooking meals and as part of the Veteran’s duties and to include as due to environmental hazards such as burn pits. See November 2016 Buddy Statement from Sgt. K.H. In providing the above opinions, the physician should address the Mayo Clinic medical evidence cited by the Veteran in an October 2020 Statement in Support of Claim that COPD can be caused by long-term exposure to irritating gases or particulate matter. A clear rationale for all opinions is required. (Continued on the following page.) 3. Following adequate completion of the foregoing, the RO should review the record and readjudicate the claim on appeal. If the claim remains denied, the RO should issue an appropriate supplemental Statement of the Case, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. Sarah Campbell Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hart, 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.