DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

Summary

The Veteran, who served from April 1980 to March 1988, appeals the denial of service connection for a thoracolumbar spine (lower back) disability. This case has a complex procedural history, including a prior remand from the Court of Appeals for Veterans Claims and multiple VA examinations and opinions. The Veteran reported several instances of low back pain and injury during service, including an acute injury in December 1985, and testified to changing duties to avoid further taxing his back. The Board found that the evidence established an in-service injury to the lower back. The central issue was the nexus between the current disability and the in-service injury. The December 2019 VA examination and opinion found a causal connection, stating the condition was aggravated by service, despite noting a pre-service condition. Conversely, July 2020 VA opinions concluded the current disability was not related to service, though they did not fully address the in-service treatment records or the prior positive opinion. The Board found the evidence in relative equipoise, particularly noting the December 2019 examiner's in-person examination and direct conversation with the Veteran, which supported a positive nexus. Applying the benefit of the doubt, service connection for the lower back disability was granted.

Rationale

Evidence in relative equipoise; Benefit of the doubt applied; December 2019 VA exam found causal connection

Full Decision Text

Citation Nr: 20070555
Decision Date: 10/30/20	Archive Date: 10/30/20

DOCKET NO. 14-07 225A
DATE: October 30, 2020

ORDER

Entitlement to service connection for degenerative disc disease of the thoracolumbar spine (lower back) disability is granted.

FINDING OF FACT

The evidence is in equipoise as to whether the Veteran's lower back disability is etiologically related to an injury incurred during service.

CONCLUSION OF LAW

The criteria for service connection for a lower back disability are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service from April 1980 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 

This matter was previously before the Board. In February 2018, the Veteran testified before the undersigned in a videoconference hearing. A transcript is of record. In a May 2018 decision, the Board denied, in part, service connection for a left knee strain and the lower back disability discussed herein. 

A May 2019 Court of Appeals for Veterans Claims (CAVC) order vacated the Board's decision and adopted a Joint Motion for Remand (JMR) for the Veteran's claim regarding these two conditions. 

In a September 2019 decision, the Board denied service connection for the Veteran’s left knee disability and remanded his claim for a lower back disability to obtain a new VA examination. The record reflects a VA spine examination and medical opinion in December 2019, and a two VA spine medical opinions in July 2020. The issue of service connection for the Veteran’s low back disability is once again before the Board. 

1. Entitlement to service connection for a thoracolumbar spine (lower back) disability

The Veteran contends that his lower back disability is related to his active duty service. 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’- the so-called ‘nexus’ requirement.”  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Certain chronic diseases, including the Veteran’s degenerative disc disease, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  

Moreover, for the purposes of 38 U.S.C. § 1110, 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 examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and was not aggravated by such service. 38 U.S.C. § 1111. This is referred to as the presumption of soundness. Id.

For disorders noted on entrance into active service, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. Once it is demonstrated that there was an increase in the severity of a preexisting injury during active service it is presumed to have been aggravated by such service; the presumption can be rebutted by clear and unmistakable evidence that the worsening was due to the natural progress of the condition. 38 C.F.R. § 3.306.

When all the evidence is assembled, VA is responsible for determining whether the evidence
For disorders noted on entrance into active service, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. Once it is demonstrated that there was an increase in the severity of a preexisting injury during active service it is presumed to have been aggravated by such service; the presumption can be rebutted by clear and unmistakable evidence that the worsening was due to the natural progress of the condition. 38 C.F.R. § 3.306.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Here, the Veteran’s December 2019 VA examination diagnosed him with degenerative joint disease of the spine and bilateral lumbar radiculopathy. The first element of service connection is accordingly established.

After a thorough review of the Veteran’s enlistment documents and service treatment records (STRs), the Board finds no evidence that a preexisting lower back injury was noted on his entry into service. See 38 C.F.R. § 3.304(b). Therefore, the presumption of soundness is not for application. 

The Veteran’s STRs reflect repeated treatment for low back injuries. He reported isolated instances of low back pain in March and July 1981, August 1982, and January 1983. Treatment notes report pain and tenderness related to movement. In December 1985, the Veteran reported an acute injury while lifting weights. He received recurring treatment through January 1986, with guided exercise and physical therapy. He reported another acute injury in December 1987, with similar symptoms. He testified at hearing that he switched duties from a bosun’s mate to working in the mess hall to avoid further back pain from physically taxing duties. As such, an in-service injury to the lower back is established. 

The Veteran's claim essentially turns on whether there is a nexus between his current lower back disability and his in-service injury. The evidence here is in conflict. The Veteran’s December 2019 VA examination and medical opinion were completed by the same provider. They conclude that the Veteran had a lower back condition prior to joining the military, but that his condition was clearly and unmistakably aggravated by service. Though the presumption of soundness does not apply, the Board observes that the opinion still finds a causal connection between the Veteran’s current disability and his in-service injuries. Thus this is evidence favorable to a grant of service connection for his low back disability.

However, the July 10 and 20, 2020 medical opinions find that the Veteran suffered mechanical injuries in service that are not related to his current disability. The 10 July medical opinion concluded that the Veteran did not have a prior back injury, but still found as stated. It did not fully address the Veteran’s STRs or low back treatment. The 20 July opinion cited the STRs, but did not change the conclusion. 

The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). 

Here, the examination and all three opinions were provided by VA medical professionals who possess the necessary education, training, and expertise to provide the requested opinions. Additionally, each is opinion shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation as to why the Veteran’s low back disability is or is not related to his in-service injuries. Notably, the December 2019 examination and opinion cited and discussed the Veteran’s STRs and his
444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). 

Here, the examination and all three opinions were provided by VA medical professionals who possess the necessary education, training, and expertise to provide the requested opinions. Additionally, each is opinion shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation as to why the Veteran’s low back disability is or is not related to his in-service injuries. Notably, the December 2019 examination and opinion cited and discussed the Veteran’s STRs and his reported pre-service injury as precipitating events leading to his current disability without further development. The Board finds it probative that the December 2019 examiner conducted an in-person exam of and spoke with the Veteran directly before providing the positive nexus opinion. The July 2020 medical opinions did not address the December 2019 medical opinion or examination. 

In light of the foregoing, the Board finds that the evidence is in relative equipoise on the question of whether the Veteran's current lower back disability is caused or aggravated by his service. Under such circumstances, the benefit of the doubt is given to the Veteran. 38 U.S.C. § 5107(b).

 

 

JAMES G. REINHART

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Department of Veterans Affairs

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.