Citation Nr: 18132291
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-35 079
DATE:	September 6, 2018
ORDER
Service connection for a lower back disability is granted.
Service connection for hypertension is granted.
REMANDED
Service connection for a bilateral lower extremity neurologic condition is remanded.
FINDINGS OF FACT
1. The Veteran has a diagnosis of lower back arthritis and he has experienced lower back symptomatology continuously since his active service. 
2. The Veteran’s hypertension began during his active service.  
CONCLUSIONS OF LAW
1. The criteria for service connection for a lower back disability have been satisfied. 38 U.S.C §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309.
2. The criteria for service connection for hypertension have been satisfied. 38 U.S.C §§ 1110, 1131; 38 C.F.R. § 3.303.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active military service from June 1965 to May 1985, including service aboard the USS Niagara Falls in the official waters of the Republic of Vietnam.
In February 2017, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is of record.  
The Board notes that the Veteran has a separate appeal pending before the Board for service connection for low sperm count.  That appeal is awaiting a Board hearing, and is not addressed in this decision.
Service Connection
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.
Service connection requires competent evidence showing: (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.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).
Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like arthritis, when manifested to a compensable degree within a year of separation from service.  38 C.F.R. §§ 3.307, 3.309.  If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of “continuity of symptoms” after service is required for service connection.  38 C.F.R. § 3.303 (b).  
1. Service Connection for a Lower Back Disability
The Veteran has a current undisputed diagnosis of lumbar spine arthritis.  Further, the Veteran was treated multiple times in service for lower back pain.  His service treatment records show that the Veteran treated for chronic low back pain in 1977 while in service.  The Veteran and his spouse testified before the Board in February 2017 that his back pain continued during the remainder of his active service and in the years following his separation from service.  His spouse, a nurse, testified that she treated the Veteran’s back pain with warm compresses, massages, and over-the-counter pain relievers since he was in active service.  The Veteran testified that, post-service, he sought treatment in the late 1980s for his back pain, but was unable to obtain the medical records, being that providers normally only retain records for seven years.
While he was not diagnosed with arthritis in service, lower back pain is known to be a symptom of lower back arthritis.  Further, the Veteran gave credible testimony at the February 2017 Board hearing that the low back pain he experienced during his twenty years of honorable service has been present since service, and that he continued to experience the lower back pain.  His testimony is consistent with statements he made during a May 2012 VA spine examination.
The Board notes that the May 2012 VA examiner opined that the Veteran’s current low back disability was less likely than not related to the Veteran’s in-service complaints of back pain because the Veteran denied back pain on his separation physical examination and there was no medical record showing that the Veteran continued to seek treatment for lower back pain in the years immediately following service.  This statement does not take into account the Veteran’s and the Veteran’s spouse’s credible statements regarding how his spouse, a medically trained professional, continued to treat his back symptoms since his active service, or the fact that medical records from the 1980s showing back treatment are unlikely to be available nearly thirty years later. Thus, the absence of additional recorded complaints of low back pain in earlier medical treatment records associated with the claims file is not dispositive evidence that the pain did not exist.   Furthermore, the 2012 VA examiner did not review imaging studies which showed the Veteran had been diagnosed with lumbar spine arthritis prior to the VA examination, and, thus, did not acknowledge that the Veteran had such a diagnosis.  As such, the Board finds that weight should not be afforded to this opinion.  Having reviewed the evidence of record, the Board finds that the evidence is at least in equipoise regarding the Veteran having experienced lower back pain since he separated from service. 
Affording the Veteran the benefit of the doubt, the Board finds that the Veteran has shown a continuity of lower back arthritis symptomatology after service, which is ultimately supported by the diagnosis of a chronic lower back disability and consistent competent lay statements regarding the onset of the Veteran’s lower back symptomatology.  As such, service connection for a lower back disability is warranted.
2. Service Connection for Hypertension
The Veteran has a current diagnosis of hypertension.  His service treatment records also indicate he was diagnosed with hypertension and treated with blood pressure medication in service to control his high blood pressure.  There is no evidence that the Veteran had high blood pressure prior to entering active service; thus, the weight of the evidence strongly supports the condition having been onset in service.  Further, the Veteran’s service treatment records show that, not only was he diagnosed as hypertensive in service, but he was also prescribed medication at the time to control his blood pressure.  Thus, the blood pressure readings upon which the 2012 VA examiner relied to opine that the Veteran’s blood pressure was not high when he left service or during his in-service hypertension-monitoring blood pressure checks were actually the product of blood pressure controlled by antihypertensive medication and do not prove that the Veteran’s blood pressure was normal at the time.  The examiner also relied upon a statement written in the Veteran’s March 1985 separation examination report of medical history, which stated the Veteran’s blood pressure checks were normal and he was not prescribed medication.  However, that statement is contradicted by the consistent record of the Veteran being directed to take blood pressure medications and having his blood pressure medication refilled throughout his active service.  The Veteran also provided competent and credible testimony before the Board in February 2017 that he began taking blood pressure medication in service and has continued to take it since then.
As such, the Board finds that the weight of the evidence shows that the Veteran’s current hypertension was onset during his active service.  Thus, service connection for hypertension is warranted.
REMANDED ISSUE
1. Service Connection for neurologic impairment of the lower extremities is remanded.
The Veteran has been denied service connection for neurologic impairment of the lower extremities on the grounds that peripheral neuropathy did not manifest within the presumptive period for Agent Orange exposure.  However, now that the Veteran is service-connected for a lower back disability and because a VA opinion has not addressed the theory of a secondary service connection between the Veteran’s service-connected insomnia and bilateral lower extremity neurological condition, another VA examination is needed before the Board can decide this claim.
The matter is REMANDED for the following action:
1. Schedule the Veteran for a VA examination to assess the etiology of any neurologic impairment in the lower extremities.  The examiner should clarify what lower extremity neurologic impairment(s) the Veteran has, to include peripheral neuropathy and sciatica.  For each diagnosed condition, the examiner should provide the following opinions: 
(a.) Is it at least as likely as not (50 percent or greater) that the disability either began during or was otherwise caused by the Veteran’s military service? Why or why not?  
(b.) Is it at least as likely as not (50 percent or greater) that any diagnosed lower extremity neurologic condition is caused by the Veteran’s service-connected lumbar spine disability.  Why or why not?  
(c.) Is it at least as likely as not (50 percent or greater) that the lower extremity neurologic condition was caused by his service-connected insomnia?  Why or why not?  
In rendering this opinion, the examiner should also address the medical literature submitted by the Veteran, which was associated with the claims file on February 23, 2017 and labeled “Correspondence,” which the Veteran contends provides a medical nexus between lower extremity neurologic conditions and his service-connected sleep disorder.  
(d.) Is it at least as likely as not (50 percent or greater) that any lower extremity neurologic condition was aggravated (made worse) by his service-connected insomnia?  Why or why not?
If aggravation is found, the examiner should identify a baseline level of severity of the neurologic impairment by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the neurologic impairment. If such cannot be done, it should be explained why.    

 
MATTHEW W. BLACKWELDER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Davidoski, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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