Citation Nr: 21032073 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 19-19 467 DATE: May 25, 2021 ORDER Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease, degenerative arthritis, and spinal stenosis, is granted. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his current lumbar spine disability is due to his active duty service. CONCLUSION OF LAW The criteria for service connection for thoracolumbar spine disability 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 February 1956 to February 1966 and from June 1967 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned in April 2021. A transcript is of record. Although the issue certified to the Board was for degenerative arthritis of the spine, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue has been recharacterized to comport with the record. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Given the Board's favorable disposition of the service connection claim for a lumbar spine disability, the Board finds that all notification and development action needed to fairly adjudicate this part of the appeal has been accomplished. 1. Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease, degenerative arthritis, and spinal stenosis, is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166 67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). In the May 1977 separation examination, the Veteran reported having recurrent back pain. In June 1977, it was further detailed that the Veteran had had back discomfort for 15 years (since approximately 1962) with no trauma and negative x-rays with the last instance of back pain occurring one year prior. In an in-service examination dated "22-09-1," it was noted that in 1965, the Veteran had injured his back while lifting boxes at the Homestead Air Force Base and that he had chronic lumbosacral strain. Military personnel records showed that the Veteran consistently served as a weapons mechanic, weapons maintenance technician, or a weapons loading crew member. According to performance reports, the Veteran's duties include loading munitions, explosives, and propellant devices onto aircraft. The evidence, including private treatment records and VA examinations, shows that the Veteran is currently diagnosed with a lumbar spine disability, to include lumbar degenerative disc disease, degenerative arthritis, and spinal stenosis. Post-service private treatment records show that the Veteran consistently complained of and received treatment for his back. In an April 2018 VA examination, the Veteran was diagnosed with lumbar degenerative arthritis and spinal stenosis. He reported injuring his back in 1959 or 1960 while lifting a heavy object. The examiner opined that it was less likely than not that the Veteran's lumbar spine disability was due to his service based on finding no objective evidence in the medical record to support that the Veteran had a back condition or injury during service or for years subsequent to service. It was noted that the Veteran had back surgery 30 years after separation from service which was multilevel and indicative of chronic wear and tear on his spine consistent with the aging process. In a July 2018 private medical opinion, Dr. LaFata stated that he had reviewed the service medical records and had the Veteran as a patient since August 2012. It was in his medical and professional opinion that the Veteran's diagnosis of recurrent back pain was more likely than not caused by his service and had continued as a chronic condition to present time. In a November 2018 lay statement, the Veteran reported that he had hurt his back and neck many times bending and lifting bombs and missiles by hand. He seldom saw a doctor and would treat his back problem with "a lot" of aspirin or a heat pad. As years went by, his problem kept getting worse. In a June 2019 VA examination, the Veteran was diagnosed with lumbar degenerative disc disease, degenerative arthritis, and spinal stenosis. The Veteran reported that his back condition began in 1956 or 1957 when he did heavy lifting and prolonged bending service. The examiner noted that the May 1977 separation examination showed recurrent lumbosacral strain and post-service treatment records showed that the Veteran was diagnosed with degenerative spinal changes in 2006. The examiner opined that it was less likely than not that the Veteran's back disability was due to his military service. The examiner found that the Veteran's in-service back pain was due to muscular lumbosacral strains and x-rays showing no evidence of additional spinal pathology. Muscular lumbosacral strains did not result in or predispose to the development of currently diagnosed degenerative spinal arthritis, degenerative disc disease, or spinal stenosis. The service treatment records also did not document symptoms suggestive of the currently diagnosed degenerative spinal disorders or an in-service injury or condition that would likely result in the development of spinal pathology of the diagnosed conditions. The examiner found that the Veteran's conditions were more likely the result of aging. In a July 2019 VA 9, the Veteran reported that he had been a weapons maintenance technician during service for 20 years. During that entire time, he had loaded bombs and missiles onto aircraft. He remembered hurting his back for the first time at McDill Air Force Base in 1966. After those initial injuries, his condition began getting worse with each re-injury while on active duty. He was in a very physical career field. He planned on staying to his retirement date, so he stayed silent and complained as little as possible. At the April 2021 hearing, the Veteran contended that his current back disability was due to his military duties. He reported that he had injured his back several times during service, but did not seek treatment at the base hospital. He consistently sought treatment for his back after service, to include from private medical facilities, his wife (a nurse), and self-medication. He also swam and went to the gym. However, over time, his back kept getting worse. His duties as a weapons maintenance technician included loading bombs or any kind of armament onto aircraft, which involved lifting missiles or bombs. It was a lot of manual labor and the bombs and missiles were very heavy. The Veteran asserted that doing this sort of manual labor through the years had repeatedly injured his back. He did not go to the doctor during service because he wanted to stay in for 20 years. The Veteran reported that his back issues began in 1956 when he was at the Homestead Air Force Base. His duty included lifting ammo cans for B52's. The first time he did heavy lifting, he noticed that his back started aching. After service, the Veteran had an office job which did not require heavy lifting. Based on a careful review of all the subjective and clinical evidence, the Board finds that resolving all reasonable doubt in favor of the Veteran, his service connection claim for a lumbar spine disability is warranted. The Board acknowledges that the April 2018 and June 2019 VA examiners opined that the Veteran's lumbar spine disability was less likely than not due to his military service. However, the Board finds that these opinions lack probative value as the examiners did not address the Veteran's lay statements as to the continuity of his back pain following separation from service. They also did not address the Veteran's statements as to the rigors of his military duties which reinjured his back. By contrast, Dr. LaFata's favorable opinion considered not only the medical records, but the Veteran's contentions that he has had continuity of symptoms since service. The Veteran has competently and credibly endorsed the persistence of his back problems since service. Jandreau, 492 F.3d 1372. Additionally, his reports have been corroborated by contemporaneous service treatment and military personnel records. Therefore, resolving all reasonable doubt in favor of the Veteran, his current lumbar spine disability is at least as likely as not due to his active duty service, specifically the rigors of his military duties. Accordingly, his claim for service connection for a lumbar spine disability is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disability is remanded. 2. Entitlement to service connection for a right shoulder disability is remanded. In Saunders v. Wilkie, 886 Fed. Cir. 1356 (2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pain could constitute a disability under 38 U.S.C. § 1110 if it amounted to a functional impairment. The Federal Circuit held that to establish the presence of a disability, the Veteran will need to show that his or her pain reaches the level of a functional impairment of earning capacity. Id. at 28. The Board finds that while post-service treatment records do not show a diagnosis of a left or right shoulder disability, they indicate this pain may result in functional impairment (i.e., increased pain with lifting and carrying). Additionally, in a January 2018 private treatment record, it was noted that the Veteran reported having had x-rays showing arthritis in the shoulder/neck. As such, a remand is warranted to clarify whether the Veteran has a left and/or right shoulder disability. The matters are REMANDED for the following action: 1. Obtain any outstanding private and/or VA treatment records pertaining to the Veteran's shoulder. Request the Veteran's assistance to obtain outstanding private treatment records, to include x-rays, as indicated in a January 2018 private treatment record. 2. Schedule the Veteran for a VA examination regarding the nature and etiology of his claimed left and/or right shoulder disability. Provide the claims file, including a copy of this REMAND, to the examiner for review. After reviewing the claims file, the examiner should address the following: (a) Clarify whether the Veteran has a current left and/or right shoulder disability. The examiner is advised that shoulder pain may constitute a disability if it reaches the level of functional impairment of earning capacity. (b) Then, opine whether it is at least as likely as not (50 percent probability or greater) that any current left and/or right shoulder disability had its onset in, or is otherwise related to service, to include the physical rigors of the Veteran's duties as a weapons mechanic, weapons maintenance technician, and weapons loading crew member. In providing the opinions requested above, the examiner must consider statements from the Veteran regarding the onset and continuity of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). A complete rationale for all opinions expressed must be provided. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, 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.