Citation Nr: 21042434 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-46 760 DATE: July 13, 2021 ORDER Entitlement to service connection for a back disability is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a sleep disorder, to include as secondary to a back disability, is remanded. FINDING OF FACT The Veteran's back disability was at least as likely as not incurred during service. CONCLUSION OF LAW The criteria to establish entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard from May 1981 to July 2004. During this service, he had a period of active duty for training (ACDUTRA) from June 1981 to September 1981 and a period of active duty from December 1990 to May 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). This matter was previously before the Board in November 2018 and March 2021, at which point the claim was remanded for additional development. The most recent VA examinations were performed in April 2021. The Board finds that these examinations are inadequate as they pertain to the Veteran's back disability and sleep disorder. Remand for a back disability is not warranted, in light of the grant of service connection. However, remand is necessary in order to obtain a new examination and assess the Veteran's sleep disorder. See Stegall v. West, 11 Vet. App. 268 (1998). During the pendency of the appeal, the Veteran was granted service connection for bilateral hearing loss and bilateral tinnitus in May 2021 rating decision. Because this grant represents a full grant of the benefits sought, this issue is no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). I. Duty to Assist The Board notes that the Veteran was notified in March 2012 that his service treatment records (STRs) were unavailable for the periods of service from December 7, 1990 to May 24, 1991. In response, the Veteran submitted numerous buddy statements to corroborate his reports of treatment for back pain arising from an accident that occurred during this period of active duty service. Subsequently, STRs covering the period between December 1990 and June 2004 were added to the record. These records document dental treatment from December 1990 to February 1991, a sick visit in January 1991, and a separation examination in April 1991. They do not document Veteran's alleged in-service injury and treatment. However, there is no indication in the claims file that these records are complete. When service treatment records are unavailable through no fault of a veteran, there is a heightened obligation on the part of VA to assist the claimant in the development of his case, explain findings and conclusions, and to consider carefully the benefit of the doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claims has been undertaken with these heightened duties in mind. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a current 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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Additionally, for veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, to include arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease such as arthritis is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service, but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he or she served, his or her medical records, and all pertinent medical and lay evidence. See 38 C.F.R. § 3.303 (a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for a back disability The Veteran maintains that his back disability manifested during service and that his symptoms have continued since discharge. The Board finds that the elements of entitlement to service connection for a back disability have been met. With respect to current disability, the Veteran was diagnosed by diagnostic imaging with degenerative disc disease of the lumbar spine. Two VA examiners confirmed this diagnosis and noted the presence of mild spinal stenosis in their examination reports from October 2019 and April 2021. Accordingly, the first element of service connection has been satisfied for a back disability. With regard to in-service incurrence, the Veteran maintains that he injured his back during a training exercise at Fort Hood when the Bradley vehicle he was riding in was rear-ended. He indicated that he sought treatment the next morning and was given ibuprofen. He also reported that his military occupational specialty (MOS) was reassigned to a gunner in 1993 due to his back pain. The Board notes that the Veteran is competent to report symptoms and observable events within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470-471 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the Board finds no reason to doubt the credibility of these statements, as the Veteran's statements are consistent with military personnel records and have been corroborated by individuals who served with him. Military personnel records reveal that the Veteran was stationed at Fort Hood during his active duty service in 1990 and 1991. These records also reveal that the Veteran's MOS was reassigned to a gunner in 1993. Additionally, an individual who served as the Veteran's squad leader submitted numerous buddy statements, in which he reported that he and the Veteran were rear ended while performing a maneuver in a Bradley vehicle. He indicated that the Veteran came to him with complaints of back pain and he advised the Veteran to go to sick call, which consisted of a tent with medics where Veteran was given motrin for pain. He indicated that he recommended the Veteran for light duty. However, he noted that the Veteran did not seek further treatment for back pain because he did not want to be "put out" of the military. Meanwhile, another individual who served in mortars with the Veteran also corroborated the Veteran's reports in numerous buddy statements. He indicated that the Veteran would complain of back pain during missions and while carrying ammunition. From this evidence, the Board finds that the Veteran's competent and credible lay statements sufficiently establish the in-service incurrence element of this claim. The remaining question is whether there is a nexus between the Veteran's in-service incurrence and his current back disability. The record contains two negative opinions addressing a nexus. In October 2019, a VA examiner concluded that the Veteran's current back disability is less likely than not caused by or a result of an event in military service. The October 2019 VA examiner reasoned that the Veteran's separation examination was negative for back complaints and the medical records were silent for any issues until 2006, at which point the Veteran was seen and reported a three-month history of low back pain. In a March 2021 remand, the Board concluded that this opinion was inadequate because it relied solely on the absence of medical records and failed to consider reports made by the Veteran and his fellow service members. An addendum opinion was requested, and in April 2021, another VA examiner offered a negative nexus opinion. This examiner reasoned that there is no evidence of a chronic back condition during service, noting that the Veteran's separation examination and STRs were negative for entries relating to a back condition. He further reasoned that degenerative disc disease was not diagnosed until 2014 and it is highly unlikely that a significant condition would have gone unnoted or unreported. Thus, he concluded that the Veteran's reported symptoms during service were almost certainly due to mechanical back pain and muscle strain, which is less likely than not due to degenerative disc disease. Contrary to this opinion, the Veteran has consistently reported that he has had back pain since service. The Board finds that the Veteran is competent to report the onset and continuity of his symptoms. 38 C.F.R. § 3.303 (a); see also Jandreau, 492 F.3d at 1377. Furthermore, the Board finds no reason to doubt the credibility of these statements, as they have been consistent throughout the Veteran's appeal. In this regard, it is noteworthy that the Veteran told a treating doctor in September 2015 that he did not complain about his back pain throughout the years because he loved the military and did not want to be put out. Similarly, the Veteran's squad leader also indicated that the Veteran was afraid to report his injury for fear of being discharged from the military. Furthermore, the record reveals that the Veteran sought treatment for a back condition prior to 2014. In September 1993, he was seen for back pain in the emergency room, which was just two years following his active duty service. Then, a September 2000 medical examination documented a back injury and noted that the Veteran saw a chiropractor for muscle spasms in 1996. Moreover, degenerative changes were observed on diagnostic imaging as early as October 2006, which is 8 years earlier than noted by the April 2021 VA examiner. Overall, this evidence contradicts the examiners' conclusion that the Veteran's back pain has not persisted since his reported in-service injury. Because the April 2021 VA examiner did not address the Veteran's competent and credible lay statements regarding his continual symptoms since service or his treating history for back pain prior to 2014, it is inadequate and has no probative value. See Reonal v. Brown, 5 Vet. App. 548 (1993). Given that there is no adequate negative opinion, the competent and credible statements made by the Veteran is the most probative evidence of record. See 38 C.F.R. § 3.303 (a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence); see also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). Accordingly, the Board finds that the most probative evidence establishes a nexus between service and the Veteran's current back disability. In sum, the weight of the evidence supports finding that the Veteran's back disability was incurred during his active service, and service connection is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 3.303 (a), (d). REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability and entitlement to service connection for a sleep disorder are remanded. A treating note from October 2015 reveals that the Veteran applied for disability benefits with the Social Security Administration (SSA). However, there are no SSA records associated with the claims file, nor does the record reflect that there have been any attempts to obtain such records if they exist. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, records from Federal agencies such as the SSA. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c)(2). As these records are potentially relevant to the issues in this case, the AOJ should attempt to obtain them. A remand is also necessary to obtain a new VA examination with respect to the Veteran's allegations of a sleep disorder. In April 2021, a VA examiner concluded that he could not say without speculation whether the Veteran's sleep problems are related to back pain due to daily alcohol misuse and lack of clarity regarding the Veteran's sleep patterns and problems. In reaching this conclusion, the examiner noted that the Veteran's primary complaint at the examination was not his pain condition or sleep difficulties, but rather his experience with anxiety. However, the Veteran has alleged throughout the course of his appeal that he cannot sleep due to back pain. Consistent with his reports, treating records note that the Veteran complained of difficulty sleeping due to back pain during an urgent care visit in August 2012. Accordingly, a VA examination is necessary to ascertain whether the Veteran has a sleep disorder that is caused by service or otherwise related to his service-connected back disability. The matters are REMANDED for the following action: 1. Contact the Social Security Administration and obtain a copy of any records SSA has concerning the Veteran's claim for disability benefits, including any decision made and any medical records used to make the decision, if a decision was made. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and documented in the record. Required notice must be provided to the Veteran and her representative. 2. The AOJ should also secure any outstanding VA medical records. 3. After completing the preceding development, determine if any additional development, such as an examination or opinion, is necessary as it pertains to the Veteran's left knee disability, and if so, complete such development. 4. Provide the Veteran with a VA examination to assess the nature and etiology of the claimed sleep disorder. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. (a) The examiner must first indicate if there is any current sleep disorder. (b) If there is a sleep disorder, the examiner must opine whether it is at least as likely as not that the Veteran's sleep disorder was caused by service or is otherwise related to his service-connected back disability. In providing the above opinion, the examiner must consider treating records from August 2012 that document the Veteran's complaints of difficulty sleeping due to back pain. A thorough rationale is required for all conclusions. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.