Citation Nr: 21029838 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-24 486 DATE: May 17, 2021 ORDER Entitlement to service connection for degenerative arthritis of the spine is granted. Entitlement to service connection for radiculopathy of the right lower extremity is granted. Entitlement to service connection for radiculopathy of the left lower extremity is granted. REMANDED Entitlement to service connection for sinusitis, to include chronic cough, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his degenerative arthritis of the spine is at least as likely as not related to service. 2. The Veteran's radiculopathy of the left lower extremity is proximately due to his service-connected degenerative arthritis of the spine. 3. The Veteran's radiculopathy of the right lower extremity is proximately due to his service-connected degenerative arthritis of the spine. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative arthritis of the spine are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for radiculopathy of the left lower extremity are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for radiculopathy of the right lower extremity are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2002 to December 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for degenerative arthritis of the spine is granted. 2. Entitlement to service connection for radiculopathy of the left lower extremity is granted. 3. Entitlement to service connection for radiculopathy of the right lower extremity is granted. The Veteran is seeking to establish service connection for degenerative arthritis of the spine. He contends his back disability is etiologically related to service. Additionally, the Veteran contends he suffers from radiculopathy of the bilateral lower extremities that is secondary to his claimed back disability. Following a review of the evidence of record, the Board resolves reasonable doubt in favor of the Veteran and finds that entitlement to service connection for degenerative arthritis of the spine is warranted. Additionally, the Board finds that the Veteran's bilateral lower extremity radiculopathy is secondary to his degenerative arthritis of the spine; thus, entitlement to service connection for radiculopathy of the left lower extremity and radiculopathy of the right lower extremity is warranted. With regard to a present disability, treatment records reflect that the Veteran has been diagnosed with degenerative arthritis of the spine. As such, the first element of service connection is met. With regard to an in-service injury, a February 2006 Post Deployment Health Assessment (PDHA) reflects that the Veteran endorsed current back pain and back pain during deployment. Additionally, a February 2006 service treatment record reflects that the Veteran reported joint stiffness, muscle aches, and joint pain. Accordingly, the Board finds the second element of service connection is met. As for the third element of service connection, evidence of a nexus between the Veteran's back disability and service, the Board finds this final element has been met. In a November 2015 statement in support of the Veteran's claim, Dr. A. P., a private physician, stated he had been treating the Veteran since January 2014. In that time, he had diagnosed the Veteran with L4-5, L5-S1 disc herniation with right-sided radiculopathy. Dr. A. P. indicated he had reviewed the Veteran's medical history and noted eight years of ongoing back pain dating back to service with only ibuprofen serving as treatment. Dr. A. P. opined that the Veteran's current lumbar spine issues were incurred in or aggravated by military service. Dr. A. P. noted that the Veteran did not have any other known risk factors that could have precipitated his condition. The Veteran was afforded a VA examination for his back in March 2016. The VA examiner reviewed the Veteran's claims file and noted a February 2006 PDHA reflecting back pain and a June 2010 permanent profile due to low back pain. The examiner explained that these records indicated a significant chronic back problem and subsequent post-service treatment records showed herniated discs and radiculopathy. The examiner opined that the Veteran's back disability was at least as likely as not incurred in or caused by service. Additionally, the examiner noted that chronic back conditions more times than not caused radiculopathy. In an August 2020 statement in support of the Veteran's claim, Dr. D. M., a private physician, stated that following his interview of the Veteran and review of his claims file, it was his opinion that the Veteran's thoracolumbar condition was related to service. Further, he opined that the Veteran's left lower extremity radiculopathy was related to his thoracolumbar condition. Dr. D. M. referenced medical literature that supported his opinion that the Veteran's back trauma during service resulted in his present disabilities. As the third element of service connection has been met, the Board concludes that the Veteran's degenerative arthritis of the spine is etiologically related active service. Therefore, entitlement to service connection for degenerative arthritis of the spine is granted. Further, as the Veteran's radiculopathy of the left lower extremity and radiculopathy of the right lower extremity have been found secondary to his herein granted service-connected back disability, entitlement to service connection for radiculopathy of the bilateral lower extremities is warranted. REASONS FOR REMAND 1. Entitlement to service connection for sinusitis, to include chronic cough, is remanded. The Veteran is seeking to establish service connection for sinusitis, to include chronic cough. He asserts that his sinusitis developed as a result of his service in Southwest Asia. The Veteran was afforded a VA examination for respiratory conditions in March 2016. The VA examiner noted a diagnosis of minimal bibasilar subsegmental atelectasis and indicated that no bronchitis was found on examination. Therefore, he opined that the Veteran's claimed condition was less likely than not related to service. In February 2017, the RO sought clarification regarding the etiology of the Veteran's minimal bibasilar subsegmental atelectasis through a VA addendum opinion. The February 2017 VA examiner reviewed the Veteran's claims file and opined that the Veteran's respiratory condition with slightly decreased pulmonary function testing and symptoms of chronic cough was at least as likely as not related to exposure to environmental hazards due to service in Southwest Asia. The examiner explained that his opinion was supported by the National Academy of Sciences Institute of Medicine findings which, while not conclusive, determined that the decrease in pulmonary function was suggestive of respiratory effects from exposure to environmental hazards related to service in Southwest Asia or particulate matter related to open burn pit exposure. The examiner concluded that the Veteran's unique circumstances of service in Southwest Asia and respiratory symptoms during and following his deployment to Iraq noted in service treatment records supported his conclusion. As a result of the March 2016 diagnosis of minimal bibasilar subsegmental atelectasis and the February 2017 positive nexus opinion, the Veteran was granted service connection for minimal bibasilar subsegmental atelectasis (claimed as bronchitis) in a March 2017 rating decision. However, the Veteran had also sought service connection for sinusitis but neither the March 2016 nor February 2017 VA examiner addressed the Veteran's sinusitis, despite notation of this condition, as well as chronic cough, in the Veteran's treatment records. Therefore, it is unclear whether the Veteran currently has a diagnosis of sinusitis or chronic cough (to include at any time during the appeal period) and whether the conditions are related to service. According, remand for an addendum opinion is warranted. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran is seeking to establish service connection for bilateral hearing loss. He asserts his hearing loss is related to exposure to hazardous noise due to serving as Field Artillery and during his service in Southwest Asia. The Veteran was afforded a VA audiological examination in June 2014. Following examination, the VA examiner determined that the results for the Veteran's right ear did not meet a diagnosis of hearing loss for VA purposes. With regard to the Veteran's left ear, the examiner noted that while a separation audiogram was not available for review, results from the present audiogram did not show a significant threshold shift when compared to the Veteran's pre-enlistment audiogram. Although the Veteran was afforded a VA examination in June 2014, he continues to assert he has trouble hearing. Given his extensive in-service noise exposure, the Board finds that the Veteran should be afforded another VA audiological examination on remand. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician, regarding the Veteran's sinusitis, including chronic cough. The claims file and a copy of this remand must be made available to the examiner. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner is asked to provide a response to the following: a) List all diagnosed respiratory disabilities. The examiner should address notations of sinusitis and chronic cough in the Veteran's treatment records. Please clarify whether the Veteran's claimed chronic cough is its own disability or a symptom of a disability. b) For each diagnosed disability (other than the Veteran's service-connected minimal bibasilar subsegmental atelectasis), is it as least as likely as not (50 percent probability or greater) that the disability had its onset in or is otherwise etiologically related to active duty service? Please explain why or why not. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 2. Schedule the Veteran for a VA audiological examination for his bilateral hearing loss. The claims file and a copy of this remand must be made available to the examiner. The examiner is asked to provide a response to the following: Is the Veteran's bilateral hearing loss at least as likely as not related to service? Please explain why or why not. The examiner should note that exposure to hazardous noise has been conceded. (Continued on the next page) The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt, 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.