Citation Nr: 21041076 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 11-09 356 DATE: July 8, 2021 REMANDED Entitlement to service connection for degenerative disc disease of the lumbar spine, claimed as back aches, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1987 to May 1991, with service in Southwest Asia from October 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In a March 2020 decision, the Board denied in part, entitlement to service connection for degenerative disc disease of the lumbar spine. The Veteran subsequently appealed the portion of the Board's decision regarding his claim for service connection for a low back condition to the United States Court of Appeals for Veterans Claims (Court). By way of a February 2021 Joint Motion for Partial Remand (JMPR), the parties agreed that the March 2020 Board decision that denied entitlement to service connection for a low back condition should be vacated and remanded because the Board did not address the combat presumption or address material evidence of record. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran contends that his low back disability is a result of his active duty service or in the alternative, secondary to his left shin strain, left lower extremity blood clots and/or right knee strain. See November 2019 Statement in Support of Claim. In the February 2021 JMPR, the parties agreed that the Board erred by failing to address the combat presumption in 38 U.S.C. § 1154(b) which applies in adjudicating the claim. The Court noted that the Veteran is in receipt of the Valorous Unit Award and the Veteran reported that his back injuries were associated with being "jostled around in a tank a lot." The Court also stated that in August 2018, the Veteran reported that while he was in the Gulf War, he was moving around in the tank and that his head hit the sides of the tank. The Board did not address or discuss these statements. Additionally, the parties agreed that the Board erred because it did not address material evidence of record. In this regard, the Court stated that the record shows that the Veteran complained of lower back pain in March 1995, which was documented on a VA consultation sheet. The consultation sheet noted that there were "findings suggestive of right L5 radiculopathy." The Court found that this consultation sheet was inconsistent with the Board's finding that the Veteran did not report back pain in the mid to late 1990s. Additionally, the Court indicated that the Board failed to address evidence that the Veteran's low back disability was complicated by service-connected posttraumatic stress disorder (PTSD). Specifically, an October 2015 treatment note indicated that the Veteran's back disability was complicated by PTSD. The Court stated that the Board is required to address all issues reasonably raised by either the claimant or the evidence of record. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). Finally, the Court stated that the Board erred in its adjudication of Veteran's claim for entitlement to service connection for a back disability on a secondary basis. The Board found that the October 2019 VA back examination necessarily excluded the secondary theories, and that the record did not contain evidence that the opinion may have been different if the secondary theories were questioned. For example, as discussed previously, the record contains evidence that the Veteran's back disability was complicated by his PTSD. The October 2019 VA examiner did not provide an opinion regarding secondary service connection. Consequently, the Court found that remand was warranted to address whether a new examination is appropriate as the issue of secondary service connection was not before the October 2019 VA examiner. Under the combat presumption, where the evidence shows that a veteran engaged in combat with the enemy, his or her lay reports will be sufficient to establish the occurrence of an event or injury during combat as long as such reports are consistent with the circumstances, conditions, or hardships of such service. This is true even if there is no official record of the reported incident, unless there is clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). This presumption also extends to a combat veteran's reports of experiencing a permanent disability beginning at the time of injury during combat. Reeves v Shinseki, 682 F.3d 988, 998-1000 (Fed. Cir. 2012). However, "[e]ven when the statutory combat presumption applies, a veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty." Id. at 999 n. 9. As such, the evidence must show that the "disability he incurred in service was a chronic condition that persisted in the years following his active duty." Id. at 1000. Here, the Veteran had service in Southwest Asia and is in receipt of the Valorous Unit Award. His Military Occupational Specialty (MOS) was an armor crewman. He reported that his back injuries were associated with being "jostled around in a tank a lot." See November 2011 VA treatment record. He also reported that when he was in the Gulf War, he was moving around in the tank and his head hit the sides of the tank. See August 2018 VA treatment record. In this regard, the Board finds the Veteran's reports of receiving a back injury after being jostled in the tank during combat activity credible are within the combat presumption for establishing that the incident occurred. However, although the combat presumption is in effect, the Veteran must still present evidence etiologically linking his low back disability injury during in-service combat to a current disability. Thus, the Board finds that remand is warranted to obtain a VA medical opinion that addresses whether his current back condition is related to his active service, to include due to being jostled in tanks. Remand is also warranted to address the evidence of record showing that the Veteran complained of lower back pain in March 1995. See March 1995 VA 10-10 Forms, Medical Certificate. The Board also notes that the Veteran indicated in a December 2011 VA treatment record that he stated his back has been painful since his deployment in 1991. The Court had found that the evidence was inconsistent with the Board's finding in its March 2020 decision that the Veteran did not report back pain in the mid to late 1990s. Additionally, remand is warranted to address secondary service connection theories as the October 2019 VA examiner did not provide an opinion regarding secondary service connection. Specifically, an October 2015 VA treatment record shows that the Veteran's thoracolumbar degenerative joint disease was possibly related to age and history of physical stresses, complicated by poor postural habits and underlying history of PTSD and the patient admits that he is a very intense person and exacerbates back symptoms. The Veteran also asserted that his back disability may be due to his service-connected left shin strain, left lower extremity blood clots, and/or right knee strain. As the record is absent of an adequate medical opinion that considers all the evidence of record and there is no medical opinion that addresses secondary service connection, an addendum medical opinion must be obtained. The matters are REMANDED for the following action: 1. Obtain additional VA medical treatment records from May 2020 to present. All reasonable attempts should be made to obtain any identified records. 2. Once the above has been completed, obtain an addendum opinion from the VA provider who issued the October 2019 medical opinion to address the claim for service connection for low back condition (or if no longer available, an appropriate replacement). The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back condition had its onset in service or was otherwise incurred in service? The examiner is advised that the occurrence of an event in service has been established by virtue of the combat presumption. The examiner must discuss the Veteran's statements that he was jostled in tanks during his deployment to Southwest Asia. The examiner must also discuss the March 1995 VA medical record noting that the Veteran complained of low back pain with findings suggestive of right L5 radiculopathy and a December 2011 VA treatment record in which the Veteran stated his back was painful since his deployment in 1991. b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back condition manifested to a compensable degree within one year of service? c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back condition was caused by or aggravated by, or a result of a residual of his service-connected PTSD, left shin strain, left lower extremity blood clots, and/or right knee strain? Secondary service connection is warranted for any incremental increase in disability. State whether there was an increase in disability regardless of permanence, but medically ascertainable. Any increase in disability should be described in terms of diagnosis, severity, and duration. The examiner is reminded that he or she must address both causation and aggravation. In addressing the above secondary opinion, the examiner must discuss the October 2015 VA treatment record noting that the Veteran's back disability was complicated by underlying PTSD and that he admitted he was a very intense person which exacerbates back symptoms. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.