Citation Nr: 22019728 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 10-42 388 ORDER Entitlement to service connection for a back disability is granted. Entitlement to service connection for a neck disability is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran's back disability is etiologically related to his active service. 2. Resolving reasonable doubt in the Veteran's favor, the Veteran's neck disability is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for a neck disability have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from March 1966 to March 1968, to include service in the Republic of Vietnam. For his service, the Veteran was awarded the Purple Heart Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board initially notes that details regarding the entire procedural history of this case can be found in the April 2019 Board remand and the October 2018 Order from the United States Court of Appeals for Veterans Claims (Court). This case was most recently before the Board in October 2020, at which time the issues currently on appeal were remanded for additional development. The case has been returned to the Board for further appellate action. The Veteran asserts that his back and neck disabilities are related to an injury sustained during his active service. Specifically, he reported that originally injured his back after he fell eight feet during basic training. Further, he attributed his back and neck pain to carrying heavy gear and/or a machine gun as a foot soldier. Alternatively, the Veteran contends that his back and neck disabilities are secondary to his service-connected psychiatric disability. Additionally, the Veteran's former Marine mates observed that the Veteran experienced severe neck and back pain from injuries incurred while serving in the Republic of Vietnam. One Marine mate witnessed the Veteran fall from a six-x truck. He and another Marine mate would help the Veteran carry his gear because he suffered from neck and back pain. He stated that daily service duties such as building landing zones out of heavy timbers and hauling thousands of sandbags significantly aggravated the Veteran's injury. The Veteran's other former Marine mate stated that they carried as much as one thousand extra rounds of ammunition and an extra barrel for the machine gun. He added that all on the gun team had problems with their necks, shoulders, and backs. The Board finds that the Veteran's former Marine mates are competent to report what they experienced or observed. Layno v. Brown, 6 Vet. App. 465 (1994). Further, the Board finds their statements credible. Service treatment records (STRs) are silent for complaint of, treatment for, or diagnosis of a neck disability. However, in May 1967, the Veteran was treated for complaints of low back pain. The diagnosis at that time was a mild strain. STRs Nonetheless, the Veteran has reported that he first experienced symptoms associated with his back disability while he was in active service and that they have continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. Pursuant to the October Board remand, the Veteran was last afforded VA examinations for his back and neck disabilities in July 2021. He was diagnosed with a back disability, to specifically include degenerative disc disease (DDD), and a neck disability, to specifically include degenerative arthritis and DDD. Regarding the Veteran's back disability, the July 2021 VA examiner opined that the Veteran's back disability was less likely than not incurred in or caused by his active service. She reasoned that the claims file revealed chronicity of care during service for DDD but was silent for DJD. Additionally, the examiner opined that the Veteran's back disability was at least as likely as not incurred in or caused by his active service. She noted that the Veteran had initial back pain in 1968 while serving in Vietnam, that he was hospitalized, and that he had numbness in his lower legs. She noted the Veteran's assertion that his back pain was chronic and assessed that his back disability was likely due to carrying heavy equipment during service. For the Veteran's neck disability, the July 2021 VA examiner opined that the Veteran's neck disability was at least as likely as not incurred in or caused by his active military service. She reasoned that the Veteran had no issues related to chronic neck pain prior to his military service and that there was evidence of chronicity. She noted the Veteran's statements that his neck pain started during his service in Vietnam and that he carried heavy guns and ammunition. Additionally, the July 2021 VA examiner opined that the Veteran's back and neck disabilities were less likely than not due to or the result of his service-connected psychiatric disability. She reasoned that the internet was silent for medical literature relating DDD as secondary to PTSD and that there was no diagnosis of DJD. However, the examiner stated, in another section of the opinion, that the Veteran had a history of PTSD that may have aggravated pain to his back. Further, the examiner opined that the Veteran's back disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by his active service. In a November 2021 addendum VA medical opinion, a VA examiner opined that the Veteran's back and neck disabilities were less likely than not incurred in or caused by his active service. The examiner reasoned that the Veteran's STRs only showed a diagnosis of neuralgia paresthetica, which was not a lumbar spine condition, and that his back pain was resolving. She added that there was limited documentation related to the neck disability during service. The examiner also noted that the documented lumbar strain was acute and that sprains did not cause arthritis in the joints. Additionally, the examiner found that there was no radiologic evidence of disruption to the articular surface of the joint at the time of the Veteran's active duty and that his DJD was most likely a natural aging process. Further, the examiner noted that the Veteran's lay statements of chronicity were not supported by the evidence. The Board finds that the July 2021 and November 2021 VA medical opinions are inadequate for adjudication purposes. In this regard, the examiners failed to consider the Veteran and his former Marine mate's lay statements which addressed either the onset or continuity of his symptoms. See Dalton v. Nicholson, 21 Vet. App. 38 (2007). Additionally, all those opinions significantly relied, in part, on the absence of medical evidence during the Veteran's service to support their negative opinions. Further, the September 2009 VA examiner failed to provide a rationale of why the Veteran's back disability was more consistent with a hereditary condition than his documented in-service injury. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Moreover, the Board notes that for certain chronic diseases, such as arthritis, continuity of symptoms is required when the condition noted in service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303 (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While the Board acknowledges that DDD is not technically arthritis, it is a chronic degenerative process that can be treated as arthritis for purposes of presumptive service connection for a chronic disease. Hence the Veteran's statements of continuity of a back pain are sufficient to establish a link between his current diagnosis of DDD and his in-service back pain. Moreover, his statements have been found credible. Based on the foregoing, the Board finds that evidence for and against the claim is in approximate balance. Therefore, the benefit of the doubt must be resolved in the favor of the Veteran, and entitlement to service connection for a lumbar spine disability is warranted. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). D. Ware Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, 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.