Citation Nr: 25005386 Decision Date: 04/22/25 Archive Date: 04/22/25 DOCKET NO. 17-11 038A DATE: April 22, 2025 ORDER Entitlement to service connection for lumbosacral strain is granted. Entitlement to service connection for left lower extremity radiculopathy is granted. REMANDED Entitlement to service connection for a lumbar spine disability other than lumbosacral strain is remanded. Entitlement to service connection for a sinus disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to a compensable evaluation for a left arm wrist burn is remanded. FINDINGS OF FACT 1. The Veteran's lumbosacral strain was incurred during service and symptoms continued from that time. 2. After resolving reasonable doubt in the Veteran's favor, his left lower extremity radiculopathy is due to his lumbosacral strain. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lumbosacral strain have been met. 38 U.S.C. §§ 1131, 5107(b) (2024); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2024). 2. The criteria for entitlement to service connection for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1131, 5107(b) (2024); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2024). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1985 to December 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA). After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issue of service connection for allergies to encompass any sinus disability. Service Connection When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). 1. Entitlement to service connection for lumbosacral strain. The Veteran reported that he experienced a cumulative and repetitive injury during active duty, which then progressed after service in 1991. See December 2014 VA examination. He also reported that he fell out of his top bunk on several occasions during active-duty service and that he has continued to have varying degrees of pain and issues with his back. See October 2022 statement. 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). A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). The burden falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that an injury or disease manifested in service was both preexisting and not aggravated by service. See 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d at 1096 (Fed. Cir. 2004). Clear and unmistakable evidence means that the evidence cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Clear and unmistakable evidence can consist of the veteran's own admissions of a preservice disability. Horn v. Shinseki, 25 Vet. App. 231, 237 (2012). If there is clear and unmistakable evidence to show that the veteran's disability was both preexisting and not aggravated by service, then the veteran is not entitled to service-connected benefits for the preexisting condition. Wagner, 370 F.3d at 1096. As an initial matter, the Board acknowledges that the Veteran was noted to have left dorsal mild scoliosis on his September 1985 entrance examination. However, because lumbosacral strain was not noted on his examination, the Veteran is presumed sound upon entrance to service for this disability. There is little, if any, evidence that his lumbosacral strain pre-existed service. Thus, the Board will proceed with adjudication with the presumption of soundness applicable. On the Veteran's December 1989 report of medical history, he reported recurrent back pain for three years. During an October 2022 VA examination, the examiner diagnosed lumbosacral strain and opined it was less likely than not that the disability was related to service. The examiner stated that service treatment records (STRs) were silent for treatment of the Veteran's back and that, although the separation report of medical history is positive for back pain, there was a large gap in time since separating from service and the Veteran's post-service treatment for his back. The Board finds this opinion is inadequate because it relies on the absence of evidence in medical records and does not consider the Veteran's report of continued pain since service. As a result, the opinion is assigned no probative weight. In May 2023, a private adult-gerontology nurse practitioner opined that it was at least as likely as not that the Veteran's lumbosacral strain is related to his service. The nurse practitioner stated that the Veteran reported an active-duty onset of symptoms and chronicity of symptomology from active duty to the current date. The nurse practitioner stated there was no evidence of a pre-military back condition or an intercurrent event that occurred after the Veteran's active-duty separation and the Veteran's current diagnosis correlates with the active-duty mechanism of the injury. Additionally, the nurse practitioner stated that medical literature documented that a prior low back injury can cause lumbar strain with mechanical and functional instability. The Board finds the May 2023 private opinion to be adequate for appellate review. The nurse practitioner provided a full and detailed rationale that included discussion of the Veteran's diagnosed disability of record and lay statements of reported history. Although she stated that the Veteran did not have a pre-military condition, and his entrance examination reflected left dorsal mild scoliosis, the Board finds that the nurse practitioner's statement is not inconsistent with the record as there is no evidence of a lower back disability pre-existing service. As a result, the opinion is assigned significant probative weight. The probative evidence of record reflects that the Veteran's lumbosacral strain was incurred during service and continued from that time. As a result, service connection is warranted. 2. Entitlement to service connection for a left leg disability. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). During an October 2022 VA back examination, the Veteran reported that, when he fell out of the top rack of his bunk a couple of times, his symptoms included an achy lower back pain and pain in his legs. His current symptoms continued to include pain in his legs. The examiner diagnosed left lower extremity sciatic nerve radiculopathy and opined the likely cause of the radiculopathy was bilateral sciatic nerve involvement. After resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's left lower extremity radiculopathy is due to his now-service-connected lumbosacral strain. The examiner opined that the disability was related to the Veteran's sciatic nerve and the Board infers from her diagnosis that the Veteran's disability is due to the Veteran's lumbosacral strain, as diagnosed in the examination. The Veteran's report of leg symptoms at the time of his back injury corroborates the finding. As such, service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability other than lumbosacral strain. The Veteran was diagnosed with facet joint arthropathy (degenerative joint disease) during a December 2014 VA examination. The examiner opined that it was less likely than not that the Veteran's disability was due to service. However, the examiner relied solely on the absence of evidence in medical records and, as a result, the opinion is inadequate. The October 2022 VA back examiner did not diagnose degenerative joint disease. Diagnostic imaging was not performed in conjunction with the examination, but the examiner noted that there was prior imaging that reflected lumbar degenerative changes. Given the October 2022 VA examiner's inconsistency during the examination about whether the Veteran has degenerative joint disease, and that no adequate medical opinion has been provided for the cause of such disability, the Board finds that remand for a new examination is warranted. 2. Entitlement to service connection for a sinus disability. As an initial matter, the Board notes that the Veteran reported hay fever on his entrance report of medical history. For the purpose of determining whether the presumption of soundness applies, the disability must be "noted" on the entrance examination, rather than the report of medical history. See 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Because "hay fever" was only noted on the report of medical history, the presumption of soundness applies. The Veteran reported hay fever several times in service when prompted by a questionnaire. For example, he reported it in an April 1987 dental health questionnaire. As just discussed, he reported it on his entrance report of medical history, and he also reported it in his December 1981 separation report of medical history. However, he was not diagnosed with hay fever or allergic rhinitis during service-any extra notation in a report of medical history is simply reported history. During a December 2014 VA examination, the Veteran reported that he began to experience headaches with earaches, sore throats, and post-nasal drip during active-duty service. A December 2014 VA examiner diagnosed allergic rhinitis and sinusitis and opined it was less likely than not such disabilities were related to service. The examiner stated that, while there are STRs that may be related to allergies, he was instead diagnosed with an upper respiratory infections two times and that, thus, his conditions were not related to symptoms in service. This opinion is inadequate because it relies on the absence of a diagnosis in service without further discussion of whether such symptoms could have also been manifestations of allergic rhinitis or sinusitis. In December 2016, a VA examiner diagnosed allergic rhinitis but not sinusitis, stating that the Veteran does not have the required symptoms for sinusitis. He opined that the Veteran's allergic rhinitis clearly and unmistakably pre-existed service and was not aggravated by service. The examiner listed the different reports of hay fever during service but stated that the Veteran was never treated for hay fever during service and there was no evidence that the Veteran's disability was ever uncontrolled. This opinion is inadequate because it relies on the absence of evidence of aggravation, which is impermissible burden shifting because it is VA's burden to prove by clear and unmistakable evidence that the disability was not aggravated. See Horn v. Shinseki, 25 Vet. App. 231 (2012). There are no adequate opinions of record related to the Veteran's allergic rhinitis. Moreover, the December 2016 VA examiner's finding that the Veteran does not have sinusitis is in conflict with the December 2014 VA examiner's finding. As a result, remand for a new examination is necessary. 3. Entitlement to service connection for a left knee disability. The Veteran reported that he injured his left knee from physical training exercises, a fall, and falling down the stairs during active duty. He stated he has had issues with his left knee ever since active-duty service. See October 2022 statement. His December 1989 separation report of medical history reflects that he reported that his knees popped when bending. In December 2014, a VA examiner diagnosed left knee patellofemoral pain syndrome, and opined it was less likely than not that the disability was related to service. However, the opinion is inadequate because the examiner relied solely on the absence of medical evidence after service and did not have the opportunity to consider the Veteran's later report of continuous symptoms. Because there is no adequate opinion of record, the Board finds that remand for a new examination is necessary. 4. Entitlement to service connection for a bilateral foot disability. The Board notes that the Veteran was noted to have bilateral pes planus upon his entrance to service. See September 1985 entrance examination. As such, the proper analysis for that disability would be aggravation of a pre-existing disability. See 38 U.S.C. § 1153. In a July 2023 statement, the Veteran reported that he has had had pain in his feet ever since active-duty service. Given that medical questions remain outstanding, the Board finds that remand for a VA examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 5. Entitlement to service connection for a left shoulder disability. In a May 2023 statement, the Veteran reported that he hurt his shoulder along with his back when he fell out of his top bunk during active-duty service. May 2021 VA treatment records reflect that the Veteran reported back and shoulder pain "for a long time." After resolving reasonable doubt in the Veteran's favor, the Board finds that the requirements for a VA examination pursuant to McLendon have been met, and remand is warranted. 6. Entitlement to a compensable evaluation for a left arm wrist burn. The Veteran's most recent VA examination for his burn scar occurred in December 2014. The Board interprets his March 2017 statement in his substantive appeal regarding pain and numbness in his hand to indicate a worsening of symptoms. Because it has been over ten years since the last VA examination, remand for a contemporaneous examination is required to assess the current severity of his service-connected disability. See Green v. Derwinski, 1 Vet. App. 121 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from February 2025 to the present. 2. After the development in the first directive is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any lumbar spine disability other than lumbosacral strain. The examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all lumbar spine disabilities in addition to lumbosacral strain present. If degenerative joint disease is not diagnosed, the examiner should discuss why. (b.) For each lumbar spine disability other than lumbosacral strain diagnosed, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that such disability was either incurred in or otherwise related to the Veteran's active-duty service? Please explain why. The examiner may not rely solely on the absence of evidence in medical records and must discuss the Veteran's report of continued pain since active duty. 3. After the development in the first directive is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any sinus disability. The examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all sinus disabilities present. If sinusitis is not diagnosed, the examiner should the December 2014 VA examination. (b.) For each sinus disability diagnosed, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that such disability was either incurred in or otherwise related to the Veteran's active-duty service? Please explain why. The examiner may not rely solely on the absence of evidence in medical records. The examiner must provide an opinion under the presumption that the Veteran was sound upon entering service. 4. After the development in the first directive is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any left knee disability. The examiner should provide an opinion with detailed rationale that responds to the following: For each left knee disability diagnosed, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that such disability was either incurred in or otherwise related to the Veteran's active-duty service? Please explain why. The examiner may not rely solely on the absence of evidence in medical records and must discuss the Veteran's report of continued pain since active duty. 5. After the development in the first directive is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any foot disability. The examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all foot disabilities present. (b.) For each foot disability diagnosed other than pes planus, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that such disability was either incurred in or otherwise related to the Veteran's active-duty service? Please explain why. The examiner may not rely solely on the absence of evidence in medical records. (c.) For bilateral pes planus, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that such disability was aggravated during service? Please explain why. The examiner may not rely solely on the absence of evidence in medical records and must discuss the Veteran's report of continued pain since active duty. 6. After the development in the first directive is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected left arm wrist burn. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran's disability. 7. If upon completion of the above action the issues remain denied, the appeal should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.