Citation Nr: 22014548 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 19-13 692 DATE: March 14, 2022 ORDER New and material evidence having been received, the previously denied claim for service connection for a lumbar spine disability is reopened. New and material evidence having been received, the previously denied claim for service connection for a foot disability, to include pes planus, is reopened. New and material evidence having been received, the previously denied claim for service connection for allergic rhinitis with bronchitis is reopened. Entitlement to service connection for a lumbar spine disability, diagnosed as spondylosis and spondylolisthesis with radiculopathy, is granted. REMANDED Entitlement to service connection for a foot disability, to include pes planus, is remanded. Entitlement to service connection for allergic rhinitis with bronchitis is remanded. Entitlement to service connection for a skin disability is remanded. Entitlement to service connection for a dry eye disability is remanded. Entitlement to service connection for an acquired psychiatric disability, to include generalized anxiety disorder and posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. In March 1985, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for allergic rhinitis with bronchitis and bilateral pes planus, finding that: allergic rhinitis with bronchitis was acute and transitory and resolved without residuals in service; and bilateral pes planus was a constitutional or developmental abnormality and not a disability under the law. 2. In August 1986, the Board of Veterans' Appeals (Board) denied service connection for a back condition, finding that an acquired back disorder was not incurred in or aggravated by service, spondylosis was a congenital or development disorder and not a disability under the law and spondylolysis was not aggravated by service. 3. The evidence added to the record since the March 1985 rating decision and August 1986 Board decision was not previously submitted to agency decisionmakers, is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims for service connection for a lumbar spine disability, a foot disability, and allergic rhinitis with bronchitis. 4. Resolving reasonable doubt in the Veteran's favor, the probative evidence of record demonstrates his lumbar spine disability, diagnosed as spondylosis and spondylolisthesis with radiculopathy, was incurred during his active service. CONCLUSIONS OF LAW 1. Following the final August 1986 Board decision, new and material evidence has been presented to reopen the claim of service connection for a lumbar spine disability. 38 U.S.C. §§ 1110, 1131, 5108, 7104; 38 C.F.R. § 3.156. 2. Following the final March 1985 rating decision, new and material evidence has been presented to reopen the claim of service connection for a foot disability, to include pes planus. 38 U.S.C. §§ 1110, 1131, 5108, 7105; 38 C.F.R. § 3.156. 3. Following the final March 1985 rating decision, new and material evidence has been presented to reopen the claim of service connection for allergic rhinitis with bronchitis. 38 U.S.C. §§ 1110, 1131, 5108, 7105; 38 C.F.R. § 3.156. 4. The criteria for service connection for a lumbar spine disability, diagnosed as spondylosis and spondylolisthesis with radiculopathy, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1980 to November 1984. This matter comes to the Board on appeal from a June 2017 rating decision of the VA RO. The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge of the Board in September 2021. A transcript of that hearing has been associated with the claims file. New and Material Evidence 1. New and Material Evidence to Reopen the Claims for Service Connection for a Lumbar Spine Disability, a Foot Disability and Allergic Rhinitis with Bronchitis A March 1985 rating decision denied service connection for bilateral pes planus and allergic rhinitis with bronchitis, finding allergic rhinitis with bronchitis was acute and transitory and resolved without residuals in service and bilateral pes planus was a constitutional or developmental abnormality and not a disability under the law. These issues in this decision were not appealed and the decision is therefore final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. Following this decision, VA has received new and material evidence, specifically private medical records and hearing testimony of a continuity of symptoms since service. Therefore, new and material evidence has been received, and the claims for service connection for a foot disability, to include pes planus, and allergic rhinitis with bronchitis are reopened. 38 U.S.C. §§ 1110, 1131, 5108, 7104, 7105; 38 C.F.R. § 3.156. A March 1985 rating decision denied service connection for a back condition. This decision was appealed to the Board, which denied the claim for service connection for a back condition in an August 1986 decision, finding that an acquired back disorder was not incurred in or aggravated by service, spondylosis was a congenital or development disorder and not a disability under the law and spondylolysis was not aggravated by service. The Veteran did not appeal this decision and it is therefore final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Following this decision, VA has received new and material evidence, specifically private medical records reflecting a current diagnosis and nexus opinion as well as hearing testimony of a continuity of back pain symptoms since service. Therefore, new and material evidence has been received, and the claim for service connection for a lumbar spine disability is reopened. 38 U.S.C. §§ 1110, 1131, 5108, 7104, 7105; 38 C.F.R. § 3.156. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 2. Entitlement to Service Connection for a Lumbar Spine Disability, Diagnosed as Spondylosis and Spondylolisthesis with Radiculopathy The Veteran asserts that he began having back pain in service and has continued to have back pain and problems since that time. The Board concludes that the Veteran has a current lumbar spine disability, diagnosed as spondylosis and spondylolisthesis with radiculopathy, that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Private treatment records demonstrate the Veteran has been treated for lumbar spine disabilities and has a current diagnosis of spondylosis and spondylolisthesis with radiculopathy. Thus, the question becomes whether the current disability is related to service. Service treatment records (STRs) demonstrate the entrance examination revealed normal findings of the spine, and the Report of Medical History at the time of the Veteran's entrance into active service did not include a history of back problems. The Veteran was treated for and diagnosed with a muscle spasm in the back in April 1981 and October 1981. An October 1981 lumbar spine x-ray reflects findings of an abnormal scoliosis series. In the July 1984 Report of Medical History at separation, the Veteran reported his health was good except his lower back problem and he reported a history of recurrent back pain. A service medical officer added a note to the Report of Medical History, dated November 1984, that the Veteran had recurrent pain in the lower back in 1981 caused by weightlifting and treated with analgesics. The probative evidence of record demonstrates a nexus between the Veteran's in-service back problems and his current diagnoses of lumbar spondylosis, spondylolisthesis and radiculopathy. The post service medical evidence of record, including January 1985 VA examination, VA treatment records from August 1985 to September 1985 and private treatment records from June 2005 to December 2021, demonstrates he has been treated for complaints of back pain dating back to January 1985 and most recently has been treated for and diagnosed with several lumbar spine disabilities, including spondylosis, spondylolisthesis and radiculopathy. In a January 1985 VA examination, the Veteran reported having lumbosacral spine pain with lifting, and a January 1985 x-ray revealed findings of lumbar spondylolysis. A July 1985 VA outpatient treatment report reflects the Veteran was diagnosed with musculoskeletal pain in the lower back. VA outpatient treatment reports in August 1985 and September 1985 demonstrate x-ray findings of spondylosis of L4-5 on the right. Subsequent private treatment reports reflect the Veteran was treated for back pain from June 2007 to December 2021. In an August 2018 private treatment report, the Veteran reported a history of back pain dating back to his military service in 1982, and he was diagnosed with degeneration of the lumbosacral intervertebral disc, lumbosacral spondylosis, lumbosacral radiculopathy and lumbago. An October 2021 private x-ray report reflects findings of moderate degenerative disc disease. In a November 2021 statement, a private physician provided an opinion regarding the etiology of the Veteran's lumbar spine disability based on a review of the STRs, post service treatment records and an evaluation of the Veteran. The private physician diagnosed the Veteran with L5-S1 spondylolisthesis, L5-S1 radiculopathy and L5-S1 spondylosis. He then opined that it was more likely than not that the current diagnosis was directly related to the Veteran's military service, explaining that there was no impairment prior to military service and that all his impairment occurred during military service. The Board observes the Veteran's lay statements and testimony of back pain beginning in service and continuing since that time, which he is competent to report and these reports of lay observable symptoms are credible as they are consistent with the overall evidence of record, including the STRs, the VA outpatient treatment reports and the private medical records. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See Baldwin v. West, 13 Vet. App. 1 (1999). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current lumbar spine disability, diagnosed as spondylosis and spondylolisthesis with radiculopathy, was incurred in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a lumbar spine disability, diagnosed as spondylosis and spondylolisthesis with radiculopathy, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service Connection for a Foot Disability, to Include Pes Planus, Allergic Rhinitis with Bronchitis, a Skin Disability, a Dry Eye Disability, and an Acquired Psychiatric Disability, to Include Generalized Anxiety Disorder and PTSD The Board also observes that, although a December 2021 private medical opinion concluded that the Veteran's PTSD and generalized anxiety disorder were related to active service generally, PTSD was not related to a verified in-service stressor. The private physician noted "traumatic events in the military;" however, no particular incident or event was specified. Accordingly, an effort should be made to obtain information regarding the Veteran's alleged stressors and traumatic events and verify the stressors. In light of the current diagnoses and treatment for plantar fasciitis, allergic rhinitis, dermatitis of the hands, dry eye syndrome, anxiety disorder and PTSD and the Veteran's testimony at the September 2021 video conference hearing regarding his foot problems, allergic rhinitis, skin disability, psychiatric disability, dry eye, and a continuity of symptoms since service, an adequate VA examination and medical opinion is required to facilitate appellate review in order to determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a current foot disability, allergic rhinitis with bronchitis, skin disability, dry eye disability or an acquired psychiatric disability and whether any of these currently diagnosed disabilities originated during active service or were otherwise caused by or related to active service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006); see Waters v. Shinseki, 601 F.3d 1274, 1276 (2010). The matters are REMANDED for the following action: 1. Contact the Veteran to request information regarding his claimed in-service stressors. 2. Thereafter, attempt to verify the Veteran's asserted stressors during service, including obtaining service personnel records (SPRs) and chaplain records and contacting the U.S. Department of Army, Records Management and Declassification Agency (RMDA) (formerly known as the U.S. Army & Joint Services Records Research Center (JSRRC) and the U.S. Armed Services Center for Unit Records Research (CURR)), if necessary. If there is insufficient information to verify any of his alleged stressors, issue a formal finding outlining the steps taken to assist the Veteran and notify him of VA's inability to verify the in-service stressors. 3. Obtain and associate with the claims file all pertinent VA and private medical records the Veteran adequately identifies. 4. The Veteran should be afforded a VA examination to determine the current nature and etiology of his foot disability. The examination report is to contain a notation that the examiner reviewed the claims file. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. PLEASE REVIEW AND ADDRESS: (1) the Veteran's Board hearing testimony regarding his foot symptoms in service and since that time; (2) STRs demonstrating treatment for a left foot injury and contusion; and (2) private treatment records demonstrating treatment for and a diagnosis of plantar fasciitis. PLEASE NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to answer the following: (a). Does the Veteran have a current foot disability of the left or right foot? (b). Whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed foot disability (left foot, right foot or both) had its onset during the Veteran's period of active service; or was caused by any incident or event that occurred during such period. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 5. The Veteran should be afforded a VA examination to determine the current nature and etiology of his allergic rhinitis. The examination report is to contain a notation that the examiner reviewed the claims file. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. PLEASE REVIEW AND ADDRESS: (1) the Veteran's Board hearing testimony regarding his allergies beginning during his active service, specifically the change in climate from where he grew up to where he was stationed in service is when he reported his allergies began; (2) STRs demonstrating treatment for allergic rhinitis; and (2) private treatment records demonstrating treatment for and a diagnosis of allergic rhinitis. PLEASE NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to answer the following: (a). Whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed allergic rhinitis had its onset during the Veteran's period of active service; or was caused by any incident or event that occurred during such period, to include moving to a new climate during his active service. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 6. The Veteran should be afforded a VA examination to determine the current nature and etiology of his skin disability. The examination report is to contain a notation that the examiner reviewed the claims file. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. PLEASE REVIEW AND ADDRESS: (1) the Veteran's Board hearing testimony regarding his skin problems in the hands due to his in-service job as an administrative specialist and typing for hours and since that time; and (2) private treatment records demonstrating treatment for and a diagnosis of dermatitis of the hands. PLEASE NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to answer the following: (a). Does the Veteran have a current skin disability? (b). Whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed skin disability (had its onset during the Veteran's period of active service; or was caused by any incident or event that occurred during such period, including his job duties as an administrative specialist. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 7. The Veteran should be afforded a VA examination to determine the current nature and etiology of his dry eye disability. The examination report is to contain a notation that the examiner reviewed the claims file. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. PLEASE REVIEW AND ADDRESS: (1) the Veteran's Board hearing testimony regarding his dry eye symptoms beginning in service due to his in-service job as an administrative specialist and symptoms since that time; and (2) private treatment records demonstrating treatment for and a diagnosis of plantar fasciitis. PLEASE NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to answer the following: (a). Does the Veteran have a current dry eye disability? (b). Whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed dry eye disability had its onset during the Veteran's period of active service; or was caused by any incident or event that occurred during such period, including his job duties as an administrative specialist. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 8. The Veteran should be afforded a VA examination to determine the current nature and etiology of his acquired psychiatric disability. The examination report is to contain a notation that the examiner reviewed the claims file. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. PLEASE REVIEW AND ADDRESS: (1). The Veteran's Board hearing testimony regarding his in-service traumatic incidents and (2). The lay statements from the Veteran's brother and a fellow service member regarding the Veteran's reports of in-service traumatic incidents. PLEASE NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to answer the following: (a). Clearly identify each psychiatric disorder found on examination; (b). The examiner must opine whether the evidence of record, including the Veteran's lay statements, other lay statements of record, and service records or other information, corroborate the claim that a personal assault occurred in service. (c). If the examiner finds that the evidence indicates that a personal assault occurred during the Veteran's military service, the examiner must opine whether it is at least as likely as not that any PTSD is related to the in-service personal assault. (d). If the examiner finds that the evidence does not indicate that a personal assault occurred during the Veteran's military service, the examiner must opine whether it is at least as likely as not that any PTSD is related to another verified in-service stressor. (d). If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed psychiatric disability had its onset during the Veteran's period of active service, or is at least as likely as not related to an in-service incident, disease or injury. (e). If a diagnosis of a psychiatric disability was not provided, please discuss the Veteran's reported psychiatric symptoms and whether any disorder diagnosed during the period of the appeal, to include anxiety disorder or PTSD, and explain why the noted evidence does not establish a chronic diagnosis. (f). In providing the requested opinions, the examiner must determine whether there is evidence of behavior changes demonstrated by the Veteran; and if so, if said changes are consistent with the expected reaction or adjustment of a person who has been subjected to an assault. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saira Spicknall, 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.