Citation Nr: 22015729 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 18-49 278 DATE: March 18, 2022 ORDER Entitlement to service connection for left hand disability is denied. Entitlement to service connection for degenerative arthritis of the lumbar spine is granted. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a thoracic spine disorder is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has a left hand disability that was incurred during a period of active duty for training (ACDUTRA). 2. The Veteran's degenerative arthritis of the lumbar spine manifested to a compensable degree within one year of his separation from active service ending in January 2016 and is not attributable to intercurrent causes. CONCLUSIONS OF LAW 1. The criteria for service connection a left hand disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for degenerative arthritis of the lumbar spine are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1979 to October 1982, and from May 2015 to January 2016, with additional service in the Marine Corps Reserve and Army National Guard. In May 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded this matter in December 2021. With respect to the issues decided herein, the Board finds that there has been substantial compliance with the Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Unfortunately, with respect to the remaining issues, the Board finds that another remand is necessary in order to obtain an adequate medical opinion. Given the differing determinations set forth below concerning the Veteran's lumbar spine and thoracic spine disabilities, for clarification purposes, the Board has separated these disabilities into two separate issues. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). However, in Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). Only such conditions recorded in examination reports are considered as noted. 38 C.F.R. § 3.304 (b). In this case, the Veteran did not have an entrance examination upon his entry into his most recent period of active duty and, thus, the presumption of soundness does not apply to this period. The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserve. INACDUTRA includes duty other than full-time duty performed by a member of the Reserve or the National of any State. 38 C.F.R. § 3.6 (c), (d). Entitlement to service connection for left hand disability The Veteran contends that he injured his left hand during a period of ACDUTRA. Importantly, service treatment records show that during a period of ACDUTRA in September 2010, the Veteran did suffer a contusion to the left hand. Initially, the Board observes that the medical evidence of record shows that the Veteran's left index finger underwent amputation and re-attachment surgery prior to the Veteran's military service. At the Board hearing, the Veteran expressly stated that he was not claiming any disability due to this injury. Rather, he was primarily asserting that he has another left hand disability due to the September 2010 injury. Thus, the question for the Board is whether the Veteran has a current disability that began during the September 2010 period of ACDUTRA. The Board concludes that the Veteran does not have current diagnosis of a left hand disability due to the September 2010 injury and has not had any diagnosis at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Importantly, the March 2017 VA examiner evaluated the Veteran and determined that the Veteran did not have a left hand disability other than the pre-service amputation/reattachment. The examiner stated that based on a normal physical examination in the mid dorsal left hand area and no abnormal radiographic findings in this area, there is insufficient evidence to diagnose the Veteran with a chronic left hand condition related to his left hand injury in service. Per records, it was a mild injury and there is no evidence on today's examination that it has caused chronic sequelae or a chronic diagnosable hand condition. Further, on examination, the examiner only found decreased range of motion of the left index finger PIP joint and gap between index finger and transverse crease is due to his pre-military finger injury and surgery. No other left hand abnormalities were observed. The Board recognizes that the Federal Circuit in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. However, here, although the Veteran has reported pain, the VA examiner clearly found no functional impairment pertaining to any residuals of the left hand injury. In sum, after examining the Veteran, the examiner clearly found that the Veteran did not have any residuals from the left hand injury that occurred during ACDUTRA. The Board finds that the examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes he has a current diagnosis of a left hand disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, specifically the March 2017 VA examination. In conclusion, the Board finds that the claim for service connection for a left hand disability must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence persuasively weighs against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for degenerative arthritis of the lumbar spine The Veteran asserts that this low back disability is related to service. Service treatment record show that during his recent period of active duty, while deployed, the Veteran reported ongoing low back pain on numerous occasions. He also reported that his back pain bothered him a lot and it was worse than before deployment. The Veteran has a current diagnosis of degenerative arthritis of the lumbar spine as evidenced by a November 2016 VA x-ray. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Initially, the Board observes that the March 2017 VA examiner indicated that the Veteran's back condition, diagnosed as degenerative changes of the thoracolumbar spine, preexisted the Veteran's most recent period of active duty. The rationale was that the Veteran's medical records clearly show that his thoracic back pain and recurrent thoracic strain clearly started before June 2012. He had spondylosis in the thoracic spine noted in 2011. The examiner stated that there was no line of duty found for a lumbar spine condition. While medical records prior to the Veteran's most recent period of active duty document injuries to the neck and thoracic spine as well as a diagnosis of a thoracic sprain, these records do not show any specific findings of diagnoses pertaining to the lumbar spine. While noting thoracic back pain and a thoracic strain prior to the most recent period of active duty, the VA examiner was also silent with respect to findings concerning only the lumbar spine. In sum, the records prior to the Veteran's most recent period active duty service do not show any diagnosis of a chronic low back disability. Thus, the Board finds that there was no evidence of a pre-existing lumbar spine disorder prior to his most recent period of active duty. Importantly, as noted above, the Veteran's DD 214 shows that the Veteran had over 7 months of active service from May 2015 to January 2016. Post-service VA treatment records dated in November 2016 show that the Veteran's degenerative arthritis of the lumbar spine manifested to a compensable degree within one year of his discharge. In this regard, November 2016 VA clinical records showed that the Veteran reported low back pain with functional limitations. Likewise, a contemporaneous x-ray documented degenerative changes. Thus, at that time, the Veteran's low back disability met the criteria for a 10 percent rating under 38 C.F.R. § 4.71A, General Rating Formulate for Diseases and Injuries of the Spine. See 38 C.F.R. §§ 4.40, 4.45, 4.59. Thus, as arthritis is a chronic condition, any subsequent manifestations are service-connected unless attributable to intercurrent causes. No intercurrent causes have been shown in this case and, therefore, the Veteran's degenerative arthritis is presumed due to his most recent period of service. In turn, service connection for degenerative arthritis of the lumbar spine is granted. REASONS FOR REMAND Entitlement to service connection for a cervical spine disorder and a thoracic spine disorder are remanded. The Veteran is also seeking service connection for cervical spine and thoracic spine disabilities. The Veteran contends that he initially injured his cervical spine and thoracic spine during periods of ACDUTRA. He further asserts that he again injured his cervical spine and thoracic spine during his most recent period of active duty when swinging a sledgehammer. By way of background, March 2011 treatment records show that the Veteran reported neck pain after tweaking his neck during yoga two weeks prior. A contemporaneous MRI showed degenerative osteoarthrosis, neural foraminal stenosis, degenerative disc disease and mild curvature of the cervicothoracic. A December 2011 service treatment record again shows that the Veteran reported some pain in his cervical/upper back. Subsequently, the Veteran injured his back and left arm in June 2012. There is a determination that such injury occurred during ACDUTRA and was diagnosed as a thoracic sprain. In December 2012, the Veteran completed a Periodic Health Assessment concerning his thoracic sprain as well as his cervical radiculopathy. The March 2017 VA examiner stated that the Veteran's neck condition clearly began before his most recent period of active duty service. There was no line of duty found for neck pain, neck injury, neck degenerative joint disease or degenerative disc disease in the service treatment records. The examiner also diagnosed degenerative changes of the thoracolumbar spine without radiculopathy and recurrent thoracolumbar strains. The examiner determined that the back condition clearly began before the Veteran's recent period of active duty service. As noted above, the examiner rationalized that there was only one line of duty (LOD) determination for a thoracic strain from June 2012. The Veteran's medical records clearly show that his thoracic back pain and recurrent thoracic strain clearly started before June 2012. He had spondylosis in the thoracic spine noted in 2011. There was no LOD found for a lumbar spine back condition. In an April 2017 addendum opinion, the examiner opined that it is less likely than not that the Veteran's cervical spine degenerative joint disease and degenerative disc were aggravated beyond their natural progression by his active duty service. The examiner also opined that it is less likely than not that his thoracolumbar spine conditions were aggravated beyond their natural progression by his active duty service. In sum, for both opinions, the examiner primarily relied on the fact that these disabilities preexisted his most recent period of active duty. The examiner also indicated that there was no evidence in the service treatment records that the Veteran's cervical spine condition was permanently worsened or aggravated beyond its natural progression. The examiner also observed that the x-rays did not show significant progression of the thoracolumbar condition. Thus, overall, there is no evidence that his cervical spine and thoracolumbar conditions have been permanently worsened or aggravated beyond their natural progression by his in-service activities and in-service report of back pain. The examiner noted that degenerative joint disease and degenerative disc disease were expected to progress over the years due to natural and aging and wear and tear. Initially, the Veteran has asserted that he was on ACDUTRA in cooking school when he injured his neck/thoracic spine in March 2011. In support of the Veteran's contention, the record includes a Service School Academic Evaluation Report that appears to show that the Veteran was on ACDUTRA in March 2011 when he initially injured his neck. Thus, given the Veteran's competent and credible statements that are supported by a service record, the Board finds that he was on ACDUTRA when he sought treatment for neck pain in March 2011. Thus, as the VA examiner indicated that the Veteran was not on ACDUTRA during this period, another opinion is necessary to determine whether any current disability is related to this incident. Moreover, although the presumption of soundness does not attach to the most recent period of active service due to lack of an entrance examination, an entrance examination is not necessary for the presumption of aggravation to attach. In this regard, the VA examiner did not clearly determine whether there was a non-temporary increase in severity by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. In other words, the examiner did not use the correct standard. Moreover, the examiner did not appear to consider the Veteran's lay statements of increasing symptomatology during active service or his active duty records documenting complaints of neck and thoracic pain, including the injury while swinging a sledgehammer. In light of the above, the Board finds that the Veteran should be afforded a new VA examination with etiological opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, given that a remand is necessary for further development, additional VA clinical records dated from December 2021 to the present should also be obtained. The matters are REMANDED for the following action: 1. Obtain additional VA clinical records dated from December 2021 to the present. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any cervical and thoracic spine disabilities. The examiner must clearly delineate all current disabilities of the cervical spine and thoracic spine. The examiner must be informed that Veteran was on ACDUTRA in March 2011 when he reported neck pain. The examiner must respond to the following: (a) whether any current cervical and thoracic spine disability is at least as likely as not related to a period of ACDUTRA or INACDUTRA, including the March 2011 injury and the June 2012 injury. (b) With respect to any preexisting cervical and thoracic spine disabilities, whether it was at least as likely as not aggravated (non-temporary increase in severity) during his most recent period of active service beginning in May 2015, and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. (c) With respect to any other diagnosed cervical or thoracic spine disabilities that did not preexist the most recent period of active duty service, whether it is at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) related to an in-service injury, event, or disease, including the August 2015 injury while swing a sledgehammer. The examiner must offer a detailed rationale for all opinions proffered. The examiner must address the service records documenting injuries while on ACDUTRA as well as during the most recent period of active duty, as well as the Veteran's lay statements. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.