Citation Nr: 21028373 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 19-34 201 DATE: May 11, 2021 ORDER Entitlement to service connection for lumbosacral strain with degenerative changes is granted. Entitlement to service connection for bilateral sciatic nerve condition is granted. REMANDED Entitlement to service connection for hernia condition is remanded. Entitlement to service connection for cervical strain is remanded. FINDINGS OF FACT 1. Currently diagnosed lumbosacral strain with degenerative changes had its onset in service. 2. Currently diagnosed bilateral sciatic nerve condition is a neurological manifestation of his service-connected lumbosacral strain with degenerative changes. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbosacral strain with degenerative changes have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral sciatic nerve condition secondary to lumbosacral strain with degenerative changes have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1986 to February 1994, with additional periods of service in the Air National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision by the Winston-Salem, North Carolina Regional Office (RO) of the United States Department of Veterans Affairs. The appellant testified at an April 27, 2021 virtual hearing held before the undersigned. This decision is being rendered prior to the production of a transcript of that hearing; given the favorable outcome, the Veteran is not prejudiced. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Finally, a disability which is proximately due to, or the result of, or aggravated by a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. §§ 3.310. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Lumbosacral Strain with Degenerative Changes The Veteran is seeking service connection for lumbosacral strain with degenerative changes. He asserts his lumbar spine disability resulted from injuries sustained in an uncontrolled ejection due to a mid-air collision. Treatment records from emergency services, Atlantic City Medical Center dated September 1997 are associated with the file and show that the Veteran was treated for contusions, abrasions, and a head injury. The Veteran's service treatment records dated September 1997 reflect treatment for injuries sustained ejecting from his aircraft. Initial physical examination revealed only minor contusions and abrasions. Private medical records show the Veteran sought treatment for chronic lumbar back pain in 2008. MRI revealed degenerative disc disease at L5-S1 and to a lesser extent L4-5 with disc bulging, slight degenerative facet disease and very slight neural foraminal narrowing as described. In 2015 the Veteran reported that he continued to experience intermittent recurrence of his pain which usually resolved with anti-inflammatories and home exercise program, but that he had recurrent pain in March 2015. He received injections which helped initially, but subsequently resolved effectiveness. The Veteran underwent a VA contract back examination in December 2016. The VA contract examiner noted the Veteran's diagnosis of lumbosacral strain with degenerative changes. The VA contract examiner determined that it was less likely than not that the Veteran's low back disability was due to service because there were no medical records indicating spine pathology while in service, stating "Pathology secondary to service activity/injury would have presented closer to time of injury." The Veteran submitted a May 2017 medical opinion from Dr. JDH in support of his claim. Dr. JDH noted the Veteran has had Veteran low back pain since an injury he sustained in September 1997 when he was ejected from an F-16 aircraft after a midair collision over the Atlantic Ocean. He was ejected from aircraft and sustained a high-energy impact with the water as he landed. Since that time, he has had aching and occasionally sharp low back pain. Pain is made worse with lifting and twisting and improves with rest. The Veteran also described occasional shooting pains down his bilateral legs that do not last for long periods of time. Dr. JDH determined that the traumatic injury the Veteran sustained in the past is likely responsible for the L5 compression fracture seen radiographically as he does not appear to have any osteopenia on the x-ray taken during the examination, and with his young age, a nontraumatic compression fracture would be extremely unlikely. After a thorough review of the evidence of record, the Board finds that the criteria for service connection for lumbosacral strain with degenerative changes are met. The Board assigns more weight to the opinion of Dr. JDH which determined that the Veteran's lumbosacral strain with degenerative changes is related to the traumatic injury the Veteran sustained in service. Dr. JDH thoroughly reviewed the Veteran's records, examined the Veteran, and discussed the traumatic injury with him. Dr. JDH offered a thorough and complete rationale for his opinion. Accordingly, the preponderance of the evidence supports the Veteran's claim for service connection for lumbosacral strain with degenerative changes. The benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, at 1 Vet. App. 49 (1990). Bilateral Sciatic Nerves The Board notes that separate ratings for neurological manifestations may be warranted under 38 C.F.R. § 4.124a if supported by objective medical evidence. Post-treatment medical records reflect the Veteran's complaints of pains in his bilateral lower extremities. This radicular pain into his lower extremities is an observable symptom that the Veteran is competent to report. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The VA contract back examiner determined the Veteran had radiculopathy of the bilateral legs during the December 2016 examination. Therefore, based on the evidence and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's bilateral sciatica is a neurological manifestation of his service-connected lumbosacral strain with degenerative changes, and that service connection for a bilateral sciatic nerve condition is granted. REASONS FOR REMAND The issues of entitlement to service connection for a hernia condition and for cervical strain are remanded for additional development. At his hearing, the Veteran testified that he experienced abdominal pain in service, which continued after service and that he was diagnosed with a hernia. The Veteran's post-service medical records confirm a diagnosis of a hernia. As there is evidence of a current hernia disorder and an indication of a potential link between this disability and the Veteran's time in service, a remand for a VA examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). An opinion should be obtained as to the nature and etiology of any currently diagnosed hernia condition. The Veteran underwent a VA contract cervical spine examination in December 2016. The VA contract examiner determined that it was less likely than not that the Veteran's diagnosed cervical strain was related to the Veteran's time in service because there were no medical records indicating spine pathology while in service; pathology secondary to service activity/injury would have presented closer to time of injury. This opinion is inadequate for adjudication purposes as it does not specifically discuss the traumatic injury the Veteran sustained in service, nor does it address whether it is at least as likely as not that the Veteran's cervical strain is related to the Veteran's service connected lumbosacral strain with degenerative changes. On remand, an addendum opinion should be obtained which determines the natures and etiology of any currently diagnosed cervical strain. The matters are REMANDED for the following action: 1. Associate with the claims file updated VA treatment records. 2. Schedule the Veteran for a VA examination. The claims folder must be reviewed in conjunction with the examination. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed hernia or residuals thereof is related to service, to include as related to the Veteran's reports of experiencing abdominal pain while in service. A full and complete rationale for all opinions expressed is required. 3. Schedule the Veteran for a VA examination. The claims folder must be reviewed in conjunction with the examination. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current cervical spine or neck disability is the result of injury or disease occurring in service; to include as due to injuries sustained in an incident in which the Veteran was ejected from aircraft and sustained a high-energy impact with the water as he landed, and/or as due to his service-connected lumbosacral strain with degenerative changes. A full and complete rationale for all opinions expressed is required. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger 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.