Citation Nr: 22010582 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 16-38 413 DATE: February 24, 2022 ORDER Entitlement to service connection for a lumbar spine disability, to include as due to service-connected disabilities, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran's lumbar spine disability is at least as likely as not related to his active military service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 2003 to December 2007. His awards and decorations include the Combat Action Ribbon. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this case for additional development in November 2018, May 2021, and October 2021. The matter has now returned to the Board for appellate review. Entitlement to service connection for a lumbar spine disability, to include as due to service-connected disabilities The Veteran contends that his lumbar spine disability is attributable to the circumstances of his active military service. Alternatively, the Veteran contends that his lumbar spine disability is the result of his service-connected foot disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after separation when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 U.S.C. § 1154, consideration is to be accorded the time, place and circumstances of service. Where a veteran is seeking service-connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a)(1). Additionally, a presumption is afforded a veteran if he or she is shown to have engaged in combat with the enemy in active service. 38 U.S.C. § 1154(b). If combat is shown, VA shall grant service connection for any disease or injury alleged to have been incurred in or aggravated by service as long as there is satisfactory lay or other evidence of service incurrence or aggravation and the injury or disease is consistent with the circumstances, conditions, or hardships of service. Id. Service connection may be granted even if there is no official record of incurrence or aggravation in such service. Id. Reasonable doubt is resolved in favor of the veteran. Id. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. Id. See also 38 C.F.R. § 3.304(d). Certain chronic diseases, including arthritis, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period of time is usually one year. 38 C.F.R. § 3.307(a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). Secondary service connection is also warranted for any permanent increase in severity (aggravation) of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b) (2017); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Turning to the record, the Veteran's service treatment records reveal that in August 2006, he complained of lower back pain after lifting weights. At the time of the encounter, the provider diagnosed the Veteran with low back strain and prescribed medication. At the November 2007 separation examination, a clinical evaluation of the Veteran's spine was reported as normal. Also, at that time, the Veteran denied recurrent back pain or any back problems. In August 2013, the Veteran was afforded a VA examination in connection with his claim. Diagnoses of degenerative disc disease of the lumbar spine and limbus deformity L4 were rendered. The Veteran reported that he injured his low back in 2005 at Camp Pendleton during physical training lifting weights. At the time, he was treated with pain medication without x-rays. The examiner opined that the Veteran's lumbar spine disorder was less likely than not proximately due to or the result of the Veteran's service-connected foot disability. In support of this conclusion, the examiner explained that in medical literature, early degenerative joint disease and plantar fasciitis do not cause degenerative disc disease of the L5-S1 vertebra or limbus at L4. The examiner did not render an etiological opinion with respect to direct service connection. VA treatment records reveal that in or around October 2013, the Veteran was diagnosed with osteoarthritis of the lumbar spine. Another VA examination was performed in August 2019. At the time of the examination a diagnosis of thoracolumbar degenerative disc disease with disc bulge T12-L1 was found. The Veteran reported intermittent back pain during his active military service. He further reported that he was diagnosed with strain and treated conservatively. The examiner opined that the Veteran's claimed lumbar spine disorder was not caused by his active military service. Although the examiner noted that the Veteran was treated during active military service for lumbar strain, , the examiner highlighted that there were no continued or chronic treatments for the rest of the Veteran's service, nor at the time of separation. Further, the examiner noted that medical literature supported that most sprains/strains are self-limited and resolve within a few days to weeks and that the Veteran's current condition of lumbar degenerative disc disease with disc bulge was not established until 2013. Equally, the examiner noted that medical literature does not support the theory that degenerative disc disease is caused by marching, running, or combat patrols. In May 2021, an addendum VA medical opinion was obtained. Specifically, the VA examiner was requested to render an etiological opinion with respect to the Veteran's secondary service connection contention. The examiner explained that there was no medical literature and or medical evidence that suggested sequela of the left heel contusion and/or plantar fasciitis would result in or cause degenerative disc disease of the L5-S1 vertebra or limbus at L4. Further, that the same was true that either would aggravate existing degenerative disc disease of the L5-S1 vertebra or limbus at L4. In June 2021, another addendum VA medical opinion was prepared. After review of the record, the examiner determined that the Veteran's medical records did not support any significant gait abnormality or any leg length inequality. Further, medical treatment records were absent for any back treatments aggravated by any foot complaints. Also, the examiner explained that medical and orthopedic literature did not support the theory that one joint dysfunction could cause a joint dysfunction in a completely separate joint, especially without any significant alteration in gait or leg length inequality. As such, the examiner found that the current lumbar spine disability was more likely the normal result of aging, less likely than not proximately due to or the result of service-connected left foot plantar fasciitis and contusion of the left calcaneus condition. An additional addendum VA medical was obtained in October 2021. The examiner noted that the Veteran had an episode of acute back strain during active military service and that there was nothing further noted at the time of his separation. Further, the Veteran did not have any ongoing complaints or treatments for low back symptoms until 2013. The examiner referenced medical literature to explained that acute pain usually subsides spontaneously over time with irritated tissue healing almost completely by six weeks after injury. To that end, the examiner emphasized that medical literature did not support the theory that a strain in the joint accelerates the degenerative process. Ultimately, however, the examiner determined that there was no way for himself, or any other examiner, to opine whether it was at least as likely as not that the Veteran's osteoarthritis of the lumbar spine began during active military service or within a year of discharge. In December 2021, the Veteran submitted a statement in support of his claim. The Veteran stated that he did not complain about pain during his active military service due to culture of not reporting pain. Moreover, the Veteran indicated that his multiple deployments prevented him from seeking comprehensive treatment during his service. As noted, the Veteran is in receipt of a Combat Action Ribbon from service, an award that designates some of the hardships he faced in service. See also August 2016 VA Form 9 statements. Based on a review of the evidence of record, the evidence is evenly balanced as to whether the Veteran's lumbar spine disability began in service and the symptoms of the lumbar spine disability have continued since service to the present. Even though the manifestation of the disability has not been severe and lack of evidence for a severe injury that necessitated immediate treatment, the evidence documents the Veteran's complaint of low back pain while in service and post-service VA treatment and VA examinations confirm that the Veteran has osteoarthritis. With all due respect to the VA examiners, none were able to show appropriate consideration for the hardships of the Veteran's combat service. The Veteran's complaint of low back pain is documented during his active military service. Moreover, the Veteran's in-service injury warrants the combat presumption under 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d). The latest VA examiner in October 2021 specifically found that determining the etiology of the Veteran's lumbar spine disability would be impossible for either that examiner or any other examiner to scientifically determine. Since medical science cannot tell us when the disability began, the negative VA etiological opinions are afforded less persuasive probative value. In conclusion, with resolution of reasonable doubt in the Veteran's favor, the claim for service connection for a lumbar spine disability is granted. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, 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.