Citation Nr: 22019031 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 15-27 709 DATE: March 31, 2022 ORDER Entitlement to service connection for degenerative joint and disc disease of the lumbar spine is granted. REMANDED Entitlement to service connection for neck pain is remanded. Entitlement to service connection for a condition manifesting in difficulty swallowing is remanded. FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, the evidence is sufficient to establish a link between currently diagnosed degenerative joint and disc disease of the lumbar spine and his period of service. CONCLUSION OF LAW The criteria for service connection for degenerative joint and disc disease of the lumbar spine have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303(b), 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably, to include active duty from March 2003 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Board remanded the matter for medical opinions. The Veteran seeks service connection for conditions to his neck and low back that he attributes to injuries he sustained during his deployment to Iraq in 2003. After review of all the evidence, the Board finds that service connection may be granted for the Veteran's lumbar spine condition. Further remand is required for the claims regarding the Veteran's neck pain. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection is warranted where the evidence shows a continuity of symptomatology of a chronic disease listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b). Arthritis is among the chronic diseases listed in 38 C.F.R. § 3.309(a). Throughout the record the Veteran has maintained that he injured his low back lifting sandbags during deployment in Iraq. Before he went to Iraq, he was a cyclist and long-distance runner, and "[his] back . . . was in perfect condition." When he was deployed to Iraq, his unit was one of the first to Baghdad to establish a camp, and he headed a 20-man crew stacking 11,000 sandbags to build a wall. One day, after several days of lifting sandbags, he lifted a bag from a pallet, his back made "a loud cracking sound," and he felt unbearable pain. He tried to walk it off, which "didn't work," so he sat on a forklift, though the pain was even worse. Of record is a letter from the Veteran's fellow servicemember stating that he witnessed the Veteran hurt his back lifting sandbags, and a more recent letter from the Veteran's master sergeant that the Veteran hurt his back and that he helped the Veteran to the nearby forklift so he could sit down, "hoping the pain would pass." The pain did not pass, however, and so the Veteran relates that at 1100 hour he had an airman drive him to the clinic. The doctor who examined him "didn't like what he saw[:] the knot in [his] back and not [being] able to walk on [his] own and the pain." The Veteran has explained at multiple points that the doctor wanted to send him to Germany or Kuwait for better treatment, but the Veteran declined, stating there was "no way was [he] going to leave Baghdad." Instead, the doctor gave him some medication for the pain and told him that if he did not improve, he should return to the clinic and would be sent out of Baghdad. Unfortunately, as mentioned in the Board's prior October 2019 decision, the Veteran's complete service treatment records are unavailable. Throughout the record the Veteran has maintained that because he was up for a promotion, he did not return to the clinic to seek further treatment, as he felt that if he had to leave Iraq he would lose his promotion potential, in addition to feeling the "strong family tradition" in his service branch. Moreover, at the time of his return from deployment, as he was set to transfer to the Air National Guard, he continued not to report the injury because he "didn't want to be labeled unfit for service and get discharged." Thus, on a May 2005 medical examination and report of medical history, he answered "No" to whether he had recurrent back pain. Likewise, he explained in a February 2022 submission that after he left the Air National Guard in 2007 he was not aware that he could apply for benefits until 2010, at which time he filed the present claim. He states, however, that ever since the in-service lifting injury he had pain that "would come and go depending on what [he] did." Such description of continuing symptoms matches the first documented treatment note of record, a visit with his private provider, Dr. C.A., in May 2013. The Veteran told Dr. C.A. that he had chronic back pain since his injury in Iraq: "He says that back in 2003 he was injured while serving overseas while he was in the military. He says that since that time he has back pain off and on." An x-ray the same month revealed multilevel degenerative disc disease in the lumbar spine and degenerative spurring. Based on all the evidence, and resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for lumbar spine degenerative joint and disc disease is warranted. The Veteran has competently described his in-service injury, corroborated by two other servicemembers, and competently reported experiencing pain in his low back since that time, to include throughout the remainder of his active-duty service, through his Air National Guard service, to the time of his 2010 service-connection claim, and to present. Barr. v. Nicholson, 21 Vet. App. 303, 307-08 (2007); see also 38 C.F.R. § 3.159(a)(2). Moreover, examinations and treatment records, which ultimately formally diagnosed his condition as degenerative joint and disc disease, have acknowledged that the condition manifests in lumbar pain. Therefore, resolving any reasonable doubt in the Veteran's favor, the Board finds that there is competent evidence sufficient to establish that the Veteran experienced a continuity of symptomatology due to his in-service back injury that was ultimately diagnosed as his current arthritis disability. 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a). While the Board acknowledges the Veteran's in-service report in May 2005 that he did not have recurrent back pain, the Board believes the Veteran's consistent explanation at multiple points during this appeal that he did not report his condition because he feared it would jeopardize his potential to be promoted or could lead to an outright medical discharge for being unfit. On this note, the Board is cognizant of a March 2021 C&P opinion that the Veteran's arthritis did not manifest within a year after active-duty service and a January 2022 C&P opinion that the Veteran's arthritis is not related to service, both opinions turning on the Veteran's May 2005 denial of recurrent back pain. Neither C&P opinion, however, discussed the Veteran's explanations that he did not report his back pain at this time due to fear of losing promotion potential or being medically discharged, and accordingly, both of these opinions are of lower probative value. E.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Board also finds credible the Veteran's statement that he went to the clinic following the injury, and where, as in this case, the service treatment records are partially unavailable, the Board has a heightened obligation to evaluate and discuss all of the evidence that may be favorable to the Veteran. Washington v. Nicholson, 19 Vet. App. 362, 371 (2005). Thus, in light of all the evidence of record, the Board finds that it is sufficient to establish a continuity of symptoms of the current lumbar spine arthritis since an in-service injury. Where a continuity of symptomatology is shown, a claimant is "relieved of the requirement to show a causal relationship between the condition in service and the" current disability. Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013); see 38 C.F.R. § 3.303(b). Accordingly, entitlement to service connection for lumbar spine degenerative joint and disc disease is granted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303(b), 3.309(a). REASONS FOR REMAND The claim for service connection for a neck condition must be remanded again in order to ensure the Veteran is provided with a fully adequate medical opinion. The Veteran seeks service connection for neck conditions that he attributes to multiple in-service injuries during his deployment in Iraq. First, as found in the Board's October 2019 decision, the Veteran was injured in an enemy mortar blast that threw him at least four feet into a canvas tent. Second, as discussed in the Board's July 2021 decision, the Veteran was punched in his neck when he helped stop a crowd attempting to execute a person by decapitation. To address any relation to service, a new C&P examination and opinion regarding a direct connection to service was provided in January 2022. The examiner found a connection less likely than not on the basis that he "was unable to find any complaints during active service or shortly after discharge of ongoing neck complaints or chronic neck pain. . . . The earliest involvement . . . was in 2017 in which x-rays showed both D[egenerative] J[oint] D[isease] and D[egenerative] D[isc] D[isease] of the cervical spine. Had the physical assault incident and mortar explosion caused a severe neck condition, [the examiner] would have anticipated complaints of ongoing neck pain and discomfort shortly following the incidents or months after the incident occurred," to include at the time of the May 2005 examination. Within the claims file, however, are reports before 2017 of neck pain, to include a July 2014 VA treatment record relating that an MRI showed arthritis in the cervical spine, as well as the Veteran's own reports in his February 2011 claim and in treatment records in May 2014 and December 2016 that he was experiencing neck pain. The Veteran also reported having neck pain ever since his in-service injuries in 2003, as recorded in the December 2016 treatment record and which he reasserted in May and September 2018. Moreover, the January 2022 C&P examiner did not appear to take into account the Veteran's statements that he did not report his injuries in May 2005 or during his National Guard service in order to avoid losing promotion opportunities or being medically discharged. To ensure the examiner considers these relevant facts of the 2014 MRI showing cervical arthritis, of the Veteran's reports of ongoing neck pain since the in-service injuries, and the Veteran's explanation of the negative report in May 2005, a new opinion should be obtained. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, on remand the Board will direct for an addendum opinion regarding any potential secondary relation between the Veteran's neck impairments and his service-connected right shoulder disability. Though a March 2021 opinion addressed whether the Veteran's diagnosed cervical arthritis is secondary to his right shoulder, it did not consider an August 2014 VA treatment record that active motion and muscle testing of the Veteran's right shoulder elicited pain in the Veteran's neck or a May 2017 statement from the Veteran that when he underwent surgery for his right shoulder in March 2017 he had experienced relief in his neck pain. Accordingly, the Board will remand for an assessment of whether the Veteran's service-connected right shoulder condition manifested in any impairment of the neck for which secondary service connection would be warranted. McLendon v. Nicholson, 20 Vet. App. 79, 83, 86 (2006) (applying 38 U.S.C. § 5103A(d)); see also 38 C.F.R. § 3.159(c)(4). Finally, while this appeal has pended, the Veteran has described a condition manifesting in difficulty swallowing and a sensation of food becoming stuck in his throat, a condition which he has contended could be related to the in-service injury when he was punched in his neck. The Board finds that such a condition may be found within the scope of his original claim for his neck. See Clemons v. Shinseki, 23 Vet. App. 1, 56 (2009); see also Murphy v. Willkie, 983 F.3d 1313, 1319 (Fed. Cir. 2020) ("Clemons explains that the VA shall afford lenity to a veteran's filings that fail to enumerate precisely the disabilities included within the bounds of a claim. It further teaches that this goal is best accomplished by looking to the veteran's reasonable expectations in filing the claim and the evidence developed in processing that claim."); see generally Robinson v. Peake, 21 Vet. App. 545, 552-53 (2008) (discussing the Board's duty to consider all issues raised by the evidence of record); 38 C.F.R. § 20.202. Additionally, while the evidence reflects that the Veteran originally began seeking treatment for this condition in 2018, years after the 2010 claim in which the current appeal originates, "the law contemplates that entitlement to service-connected disability compensation benefits may arise after the receipt of a claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (citing 38 U.S.C. § 5110(a)). Having reviewed the evidence, the Board finds remand is needed to appropriately develop the claim for this condition. The Veteran newly reported in a September 2021 statement that a VA doctor had ordered an MRI that found "the flap that separate[s] [the] airway from [the] digestive system . . . had a delay in opening and closing," but the VA treatment records in the claims file are current only up to July 2020 and do not include these MRI findings. Remand therefore is appropriate to ensure the Veteran's VA treatment records are up to date. 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c). Moreover, in light of the Veteran's competent reports of difficulty swallowing since his in-service injury when he was punched in his neck, the current presence of which was confirmed by May 2018 imaging showing "contrast along the walls of the esophagus which persists even with multiple swallows," the Board finds that VA has a duty to provide a C&P examination regarding this condition. McLendon, 20 Vet. App. at 83, 86; see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, the matter is REMANDED for the following action: 1. Associate with the Veteran's claims file any VA treatment records since July 2020. 2. Then, schedule the Veteran for an examination regarding any condition manifesting in neck pain, to include diagnosed arthritis. (a) For the Veteran's diagnosed cervical arthritis, the examiner must opine whether the condition at least as likely as not (meaning an approximate balance of positive and negative evidence) is related to the Veteran's service, to include (i) sustaining a punch to the neck during a physical altercation, (ii) being thrown in a mortar explosion and injury his neck, and/or (iii) sleeping without a pillow. In formulating his or her opinion, the examiner must consider and discuss that a July 2014 MRI revealed cervical arthritis, as well as the Veteran's reports that he has been experiencing neck pain ever since his in-service injuries in 2003 during his deployment to Iraq. (Regarding that the Veteran did not report neck pain on May 2005 service medical records, the examiner is advised that the Veteran has credibly stated that he had neck pain but did not report it at that time in order to maintain promotion opportunities and to not risk being found medically unfit to continue his National Guard service.) (b) For any other neck pain (associated with arthritis or not) since the time of the Veteran's claim (in 2010), the examiner must opine whether the condition at least as likely as not (meaning an approximate balance of positive and negative evidence) was proximately due to OR aggravated by the Veteran's service-connected right shoulder condition. In formulating his or her opinion, the examiner must consider and discuss that an August 2014 VA treatment record found that active motion and muscle testing of the Veteran's right shoulder elicited pain in the Veteran's neck, as well as the Veteran's report that when after he underwent surgery for his right shoulder he experienced relief in his neck pain. 3. Schedule the Veteran for an examination regarding the nature and etiology of any throat condition manifesting in difficulty swallowing. For any condition diagnosed, the examiner must opine whether the condition at least as likely as not (meaning an approximate balance of positive and negative evidence) is related to the Veteran's service, to include sustaining a punch to the neck during a physical altercation and/or being thrown in a mortar explosion and injuring his neck. (Continued on the next page) In rendering this opinion, the examiner must consider and discuss the Veteran's reports that he has experienced problems swallowing ever since he was punched in the throat during service and that the medicine he has been given by his treatment providers has not improved his difficulty swallowing. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.