Citation Nr: 22017470 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-38 615 DATE: March 25, 2022 ORDER Entitlement to service connection for a lumbar spine disability is granted. REMANDED Entitlement to service connection for a cervical spine disability is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his lumbar spine disability is at least as likely as not related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1973 to June 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a virtual Board hearing in October 2021. A copy of the transcript has been associated with the file. At the hearing, the undersigned Veterans Law Judge granted the Veteran's motion for a 90-day extension to submit additional information in support of his appeal. Service Connection In general, service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) 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, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. After careful consideration of the evidence, any reasonable doubt remaining, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. If the evidence is not in approximate balance or nearly equal, the claim is to be denied. The United States Court of Appeals for the Federal Circuit clarified in Lynch v. McDonough that the proper standard of review is whether the factors are in an "approximate balance." Lynch v. McDonough, 999 F.3d 1391 (2021). Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance or "nearly equal" and does not require the evidence to be in exact equipoise. Id. Entitlement to service connection for a lumbar spine disability is granted. The Veteran contends that his current lumbar spine disability stems from an injury during service. Specifically, that his current lumbar spine disabilities are a result of an in-service injury in Panama, after digging a foxhole. The April 2018 VA examination report noted a diagnosis of degenerative arthritis of the spine and degenerative disc disease. Thus, the first element of direct service connection is met. The Veteran's service treatment records (STRs) documented an October 1975 back strain 1 year ago while lifting boxes and then 5 days ago while digging a foxhole that resulted in pain in the lower back and the Veteran's inability to move. He was evacuated from the field to USAHC, then to Gorgas Hospital. Localized pain in the lumbar area for 4 days was noted, with recurrent pain for the past two years. A 3-day hospital stay in October 1975 noted the Veteran was seen for severe back pain while digging. A diagnosis of acute back strain, with a possible diagnosis of prostatitis was recorded. A follow up appointment in October 1975 noted tenderness over the lumbar area and paravertebral muscles. The examiner noted it was not possible to rule out prostatitis as the cause of problems and it was difficult to separate subjective symptoms from objective problems. A July 1976 STR noted back pain for 6 months, with pain in the spine all the way down the back. An assessment of "probable continued lower back strain from 1975" was noted. An August 1977 treatment record noted intermittent shoulder pain and neck pain, in addition to intermittent lower back pain. A December 1980 treatment record noted the Veteran complained of back problems for 4 years, after he hurt his back in Panama digging a foxhole, with recurring lower back pain since that injury. Tenderness over the L5-S1 was noted with an assessment of acute back strain, with possible slipped disc. A July 1981 service treatment record noted the Veteran complained his "middle lower back hurts," with pain for the last 7 days. It was documented the Veteran was seen before for the same problems and had treatment, medicine, and profile problems recurring for 4 years since duty in Panama. A 1981 service treatment record noted chronic back pain for 6 years, with history of trauma, vertebrae in midline. In a Report of Medical History in April 1982, recurrent back pain was noted. The Board finds the available documentation corroborates the Veteran's reports of an in-service back injury. Therefore, the second element of service connection is met. Regarding the third and final element of service connection, nexus, the April 2018 VA examiner opined that the Veteran's lumbar spine disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. For rationale, the examiner noted that the Veteran indicated he had back pain for the past 2 years. His in-service injury was in 1975, and was an acute back strain, self-limited. The examiner found the in-service injury resolved, as the 1983 separation examination did not note recurrent back pain. His current back issues are due to the aging process and unassociated from an illness during service, as it was documented as resolved with no further complaints. During his October 2021 virtual Board hearing, the Veteran testified his current lumbar spine pain began during service after an in-service injury, with continual symptoms since that time. Resolving all doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise to satisfactorily establish that the claimed lumbar spine disability originated during his active service. In reaching this decision, the Board notes that the Veteran experienced chronic lumbar pain in service, with continuity of symptomatology. This is corroborated by the Veteran's service treatment records, noting recurrent and chronic back pain, following an in-service digging injury. Thus, he has credibly stated that the onset of his lumbar spine disability occurred during service and that his symptoms have continued ever since. Although the April 2018 VA examiner opined that the Veteran's lumbar spine disability was not caused by military service, the Board is persuaded by the record illustrating in-service occurrence and continuity of symptomatology. Additionally, the April 2018 opinion has limited probative value. The examiner failed to address significant facts in the record. The examiner focused on the in-service back injury being "acute," but did not note or otherwise address the service treatment records reflecting that the Veteran had "chronic" back pain or had recurrent back pain noted in several treatment records. Furthermore, the examiner did not discuss the Veteran's contentions of the symptoms he experienced during and since service. As such, the opinion has limited probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Reasonable doubt is resolved in the Veteran's favor and the claim of service connection for a lumbar spine disability is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a cervical spine disability is remanded. The Veteran contends that his current spine disability, both thoracolumbar and cervical spine, stems from an injury during service. Specifically, his current disabilities are a result of an in-service injury in Panama, after digging a foxhole. Initially, the record illustrates that the Veteran is in receipt of Social Security Administration (SSA) disability benefits but does not state which disabilities were considered by SSA in granting the Veteran benefits. The Agency of Original Jurisdiction (AOJ) has not sought records from SSA. Therefore, remand is warranted in order to obtain records from SSA as they may relate to the issue on appeal. 38 C.F.R. § 3.159(c)(2). The Veteran's service treatment records document a hospital record from October 1975 that noted the Veteran was seen for severe back pain while digging. A diagnosis of acute back strain, with a possible diagnosis of prostatitis was recorded. A follow up appointment in October 1975 noted tenderness over the lumbar area and paravertebral muscles. A July 1976 STR noted back pain for 6 months, with pain in the spine all the way down the back. An assessment of probable continued lower back strain from 1975 was noted. An August 1977 treatment record noted intermittent shoulder pain and neck pain, in addition to intermittent lower back pain. A December 1980 treatment record noted the Veteran complained of back problems for 4 years, after he hurt his back in Panama digging a foxhole, with recurring lower back pain since that injury. Tenderness over the L5-S1 was noted with an assessment of acute back strain, with possible slipped disc. A July 1981 service treatment record noted the Veteran was seen for back pain, with recurring treatment, medicine, and profile problems since duty in Panama 4 years ago. A 1981 service treatment record noted chronic back pain for 6 years, with history of trauma, vertebrae in midline. In a Report of Medical History in April 1982, recurrent back pain was noted. An undated STR noted pain in the neck and shoulder, with an impression of possible thoracic outlet syndrome. Post service, a January 2005 treatment record indicated neck pain. A January 2009 primary care treatment note reported the Veteran was told he has arthritis in his neck and a bulging disc in the lower back. A May 2009 treatment record noted the Veteran complained of his back hurting "constantly." An assessment of low back pain, with degenerative disc disease on x-ray was noted. A May 2010 treatment record noted the Veteran had moderate tenderness to palpation of L2-S1 and bilateral S-1 joints and mild bilateral paraspinal spasm. A February 2018 x-ray noted arthritis. In March 2018, an MRI of the lumbar spine indicated multilevel degenerative changes of the lumbar spine, most pronounced at L5-S1 with degenerative disc disease mild to moderate left and mild right neuroforaminal narrowing. In his November 2019 VA Form 9, the Veteran contended pain in a disc in his neck. During his October 2021 virtual Board hearing, the Veteran testified his current cervical conditions began during service, after an in-service injury. The Board notes the Veteran has not been afforded a VA examination for the cervical spine disability. VA must provide an examination when the record contains competent evidence that the Veteran has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that the Court of Appeals for the Federal Circuit has held that "pain in the absence of a presently-diagnosed condition can cause functional impairment" which may qualify as a "disability" under 38 U.S.C. § 1110. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). A remand is warranted to obtain an examination and opinion regarding the etiology of any cervical spine disability. Pursuant to Saunders, an opinion must be rendered even if there is no formal diagnosis of a cervical spine disability. Given the evidence of the Veteran's complaints in service and his October 2021 Board testimony, the Board finds that he should be afforded a cervical spine (neck) examination. Additionally, the record contains a May 2014 unsigned VA Form 21-4142 Authorization for Release of Information for Kirkman Chiropractic in Orlando, FL. The Veteran indicated that he was given an MRI of his cervical and lumbar spine. These records have not been associated with the file. An undated VA Form 21-4142 Authorization for Release of Information noted treatment at Family Physician's Group from March 2013 to July 2018. These records have also not been associated with the file. In addition, a January 2009 treatment record noted the Veteran reported a diagnosis of arthritis of his neck. As the record indicates potentially relevant records may be outstanding, the Veteran should be provided an opportunity to identify any additional outstanding private medical records on remand. An effort must be made to locate and associate any outstanding private medical records with the Veteran's file. The matter is REMANDED for the following action: 1. Contact the Social Security Administration (SSA) and obtain a complete copy of any application and related records underlying any adjudication for SSA disability benefits regarding the Veteran. All efforts to obtain SSA records should be fully documented, and a negative response must be provided if such records are not available. 2. Obtain updated VA treatment records available and associate them with the claims file. The most recent VA records date to October 2019. 3. The Veteran should be given the opportunity to identify any outstanding private medical records relevant to his claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records related to treatment for a cervical spine condition to include, but not limited to: Kirkman Chiropractic in Orlando, FL; Family Physician's Group, from March 2013 to July 2018 to include Dr. Patino and Dr. Kumar; and any other private medical professional whose records would be relevant to the issue on appeal should be obtained. Any negative response should be in writing and associated with the file. 4. After the above development has been accomplished, schedule the Veteran for a neck examination with an appropriate medical provider, to assist in determining the nature and etiology of any cervical spine disability and the relationship, if any, to active service. The examiner must review the record and should note that review in the report. Following the examination and a review of the relevant records and lay statements, the examiner should: (a.) Identify all cervical spine disabilities present during the period of the claim. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed cervical spine disability had onset during active service or is related to an incident in service. In addressing the above, the examiner must consider and discuss all pertinent medical and lay evidence of record, to include competent, lay assertions as to the nature, onset, and continuity of symptoms. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. The examiner should not rely on an absence of medical evidence in the record to support his or her conclusions. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.