Citation Nr: 21041543 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-30 643 DATE: July 9, 2021 ORDER Entitlement to service connection for degenerative lumbar spondylosis (claimed as a lower lumbar back injury, low back pain, and thoracic spine pain) is granted. Entitlement to service connection for a cervical spine disability is granted. REMANDED Entitlement to service connection for a traumatic brain injury (TBI), to include residuals of a TBI, is remanded. Entitlement to a disability rating in excess of 10 percent for a right medial meniscus tear is remanded. Entitlement to a disability rating in excess of 10 percent for a left distal radius fracture, non-dominant, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the evidence supports a finding that the Veteran's degenerative lumbar spondylosis is related to an in-service injury. 2. Resolving reasonable doubt in the Veteran's favor, the evidence supports a finding that the Veteran's cervical spine disability is related to an in-service injury. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative lumbar spondylosis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 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. The Board has expanded the Veteran's claim of entitlement to service connection for a TBI to include residuals of a TBI. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). 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 means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for degenerative lumbar spondylosis (claimed as a lower lumbar back injury, low back pain, and thoracic spine pain) is granted. 2. Entitlement to service connection for a cervical spine disability is granted. The Veteran is seeking to establish service connection for degenerative lumbar spondylosis and a cervical spine disability. Specifically, the Veteran contends his claimed back and neck disabilities are etiologically related to an in-service injury. After a review of the evidentiary record and in light of the applicable legal criteria, the Board finds that service connection for degenerative lumbar spondylosis and a cervical spine disability are warranted. With regard to a present disability, treatment records show that the Veteran has diagnoses of degenerative lumbar spondylosis and degenerative disc disease (DDD) of the cervical spine. As such, the first element of service connection is met. With regard to an in-service event, in the November 2020 Board hearing, the Veteran testified that he had been blown down the flight deck of an aircraft carrier in service in September 1969. He was hit by jet exhaust, causing him to tumble head over heels down the deck. His cranial helmet had been broken and he had suffered multiple contusions. The Veteran testified this incident was the only injury he had ever sustained to his back and neck. The Board finds the Veteran's testimony credible and highly probative. Further, service treatment records from August 1969 reflect that the Veteran sought medical treatment after he was knocked down by a jet blast on the flight deck. Therefore, the second element of service connection is met. As for the third element of service connection, evidence of a nexus between the Veteran's claimed disabilities and service, the Board finds this final element has been met. In a March 2016 consultation, a private chiropractor, P. Y., noted that the Veteran had been blown across the flight deck of an aircraft carrier by a jet blast while in service. The Veteran was noted to have suffered progressive pain in the low back, cervicothoracic, and upper cervical regions since his injury. The chiropractor opined that the Veteran's posttraumatic residual degenerative joint disease (DJD) and spondylosis of the cervical and cervicothoracic regions, and well-advanced posttraumatic residual DJD and osteoarthritis of the lumbar spine were more likely than not directly and causally related to his in-service injury. In a March 2016 statement received by VA in April 2016, a private chiropractor, L. E. V., indicated he had been treating the Veteran for cervical and lumbar related conditions. L. E. V. noted that the Veteran reported he had been blown over 300 feet from a jet blast on the deck of a ship during service and in his opinion, the Veteran's current cervical and lumbar conditions were as likely as not attributable to this incident. In a November 2020 statement, Dr. J. K., a private physician, noted that the Veteran had back pain documented back to 1973 and a VA computerized tomography (CT) scan showed old compression vertebral fractures. The Veteran also suffered from cervical spine pain that had been diagnosed as extensive DDD. Therefore, it was Dr. J. K.'s opinion that the Veteran's back and neck pain were at least 51 percent due to his back trauma while serving in the Navy. The Board acknowledges the negative nexus opinions of record provided by VA examiners; however, the Board finds no reason to favor these opinions over the private opinions submitted by the Veteran. Therefore, the evidence is at least in relative equipoise that the Veteran's degenerative lumbar spondylosis and cervical spine disability are related to his in-service injury. Reasonable doubt is resolved in favor of the Veteran and the Board concludes that a nexus has been established. Accordingly, entitlement to service connection for degenerative lumbar spondylosis and a cervical spine disability is granted. REASONS FOR REMAND 1. Entitlement to service connection for a TBI, to include residuals of a TBI, is remanded. The Veteran is seeking to establish service connection for a TBI. The Veteran asserts he suffered a TBI as a result of being blown across a flight deck by a jet engine blast while in service. Based on a review of the claims folder, the Board finds that additional development is needed prior to adjudication of the claim. A March 2016 report of consultation from P. Y., a private chiropractor, noted that the Veteran reported daily vertigo which occurred at random. Issues with visual fields, personality changes, and speech were noted. P. Y. diagnosed the Veteran with a TBI, which he opined was more likely than not related to the Veteran's in-service injury. Additionally, a November 2020 statement from Dr. J. K. a private physician, noted the Veteran's in-service injury and a past MRI that showed a focal white matter lesion in the Veteran's right periventricular area. Dr. J. K. opined that it was reasonable that the in-service head trauma caused more than 51 percent of the Veteran's TBI. However, in a March 2016 VA treatment record, the Veteran reported a three-year history of dizziness, only in standing position. It was noted that he did not report vertigo at the time. A May 2017 VA treatment record similarly reflected that the Veteran reported dizziness beginning in 2013. He felt lightheaded and dizzy for a few seconds after standing up, with no symptoms while sitting or lying in bed. The treatment record noted that the Veteran did not report vertigo. The Veteran had undergone evaluation of the left ventricular function in February 2016 due to his complaints of dizziness. Additionally, an April 2016 private evaluation for posttraumatic stress disorder (PTSD) indicated that the Veteran did not have a diagnosis of a TBI and an April 2018 VA examination for PTSD noted that a diagnosed TBI was not shown in the records reviewed. As there is conflicting evidence regarding whether the Veteran currently suffers from a TBI, the Board finds that remand for a VA examination is warranted. 2. Entitlement to a disability rating in excess of 10 percent for a right medial meniscus tear is remanded. 3. Entitlement to a disability rating in excess of 10 percent for a left distal radius fracture, non-dominant, is remanded. The Veteran is seeking disability ratings in excess of 10 percent for his service-connected right medial meniscus tear and left distal radius fracture of his non-dominant wrist. Specifically, the Veteran contends that his disabilities are more severe than reflected by his currently assigned disability ratings. The Board finds that additional development is needed prior to adjudication of the claims. In a November 2020 Board hearing, the Veteran testified that his right medial meniscus tear and left distal radius fracture had worsened since he was last afforded a VA examination. Regarding his wrist, the Veteran stated that he had lost almost total control of his left hand, his third finger knuckle was bone to bone, and he could not make a fist. He described chronic pain, locking of the finger, and only two usable fingers on the hand. His wrist was affecting use of his hand. Regarding his right medial meniscus tear, the Veteran testified that his right knee would lock up and give out on him constantly, causing him to stumble and occasionally fall. He endorsed locking, popping, and chronic pain. He had been recommended for a total knee replacement. As there is an indication that the Veteran's service-connected disabilities may have worsened since his most recent VA medical examinations in 2016, the Board determines that remand is warranted for contemporaneous VA examinations to ascertain the current severity of the Veteran's service-connected right medial meniscus tear and left distal radius fracture of his non-dominant wrist. See Snuffer v. Gober, 10 Vet. App. 400, 408 (1997) (requiring a new examination where the claimant asserts that a disability has increased in severity since the time of the last VA examination). The matters are REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers that have treated him for a TBI or residuals of a TBI. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for an examination by an appropriate clinician to address the Veteran's claim of a TBI. 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: a) Does the Veteran have a current diagnosis (i.e., at any time during the appeal period) of a TBI or any residuals of a past TBI? b) If so, is the Veteran's current TBI and/or residuals of a past TBI as least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease? The examiner should elicit a full history from the Veteran and consider the lay statements of record. Previous medical opinions should be addressed, as well as 2016 and 2017 treatment records reflecting the Veteran's complaints of dizziness. 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). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right medial meniscus tear. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left distal radius fracture of his non-dominant wrist. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In doing so, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. 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.