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Board Erred in Denying Service Connection for Veteran’s Paget’s Disease & Low Back Condition

Board Erred in Denying Service Connection for Veteran’s Paget’s Disease & Low Back Condition

Factual and Procedural History

The Veteran served on active duty in the United States Navy from July 1963 to July 1967, including service in Vietnam.  In May 1965, he served at the U.S. Naval Station on Midway Island, where he was assigned to duties involving nuclear weapons systems.  Three years later, the Veteran sought treatment for right flank pain radiating to his right leg, but an X-ray report noted no significant abnormality in his lumbar spine.  In November 1999, he reported chronic low back pain.  Soon after, the Veteran fractured his right hip and underwent surgery.  An October 2001 bone scan revealed possible Paget’s disease: a chronic bone disorder that typically results in enlarged, deformed bones due to excessive breakdown and formation of bone tissue.  This condition can cause bones to weaken and may result in bone pain, arthritis, or fractures.  In May 2002, a private physician submitted a letter confirming the Veteran’s Paget’s disease diagnosis and opined that his diagnosis is “surely supported by the chemical exposures” he encountered during service.  Later that year, the Veteran filed a claim for service connection for “cancer” in both hips and a low back condition.  However, the Regional Office denied service connection for Paget’s disease, muscle weakness, leg pain, and back pain.  The Veteran did not appeal this decision.

In July 2005, a VA examiner determined that an X-ray examination revealed findings consistent with degenerative joint disease and possibly degenerative disc disease of the lower back, and Paget’s disease.  The Veteran then filed a claim to reopen the issues of service connection for Paget’s disease and a low back condition.  After being denied several times by the Regional Office, the Board issued a decision in October 2015 concluding that the Veteran had submitted new and material evidence to warrant reopening his claims.  The Board then remanded the claims in order to obtain a new VA examination.  In May 2016, a VA examiner opined that the Veteran’s Paget’s disease was less likely than not due to service because there is no known causal relationship between this condition and Agent Orange exposure.  The same examiner further opined that the Veteran’s low back condition was less likely than not due to service because there was no evidence of a back injury or condition incurred in service or continuum of care from his time of service to the present.  In April 2017, the Veteran submitted a statement indicating that he reported back pain in service and was “given shots to ease the pain by the medics”, referencing a 1963 service treatment record to support this contention.

Board denies service connection for Paget’s disease and low back condition

In September 2017, the Board issued the decision on appeal denying service connection for Paget’s disease, including as secondary to exposure to Agent Orange or ionizing radiation, and a low back condition.  In regards to the Veteran’s Paget’s disease, the Board found that the weight of the evidence did not support that he was exposed to ionizing radiation, and that the May 2016 VA examination was adequate and probative.  For the low back condition, because the Veteran participated in combat activities and claimed in-service back pain, the Board conceded an in-service event or injury.  However, the Board found that the Veteran’s back disability “was not factually shown during service” and that, because medical records from 1967 to 1980 “are either unavailable or nonexistent,” there is also no evidence of continuity of symptomatology.

CCK appeals to the CAVC; Veteran’s case is remanded

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied service connection for the Veteran’s Paget’s disease and low back condition.

Paget’s Disease

Here, CCK argued that the Board failed to ensure compliance with the duty to assist because the May 2016 VA examiner did not provide adequate rationale to support his conclusions, and, based them on an inaccurate factual premise.  CCK further argued that the Board failed to address favorable evidence that the Veteran was exposed to ionizing radiation while stationed at the U.S. Naval Midway Island.  Instead, the Board determined that, because the Veteran’s military personnel file did not include evidence that he was trained to work with nuclear weapons systems and he failed to submit a radiation risk activity worksheet, the weight of the evidence did not support finding that he was exposed.  However, the Court agreed with CCK, concluding that VA failed to provide an adequate medical opinion addressing whether his Paget’s disease is related to service.  Specifically, the May 2016 VA examiner’s conclusion that his Paget disease was not related to service because the condition has “no known causal relationship” with Agent Orange exposure does not contain sufficient rationale.

Low Back Condition

In regards to the Veteran’s low back condition, CCK argued that the May 2016 VA medical opinion is inadequate because the examiner failed to consider an in-service back injury and treatment.  CCK also asserted that the Board provided inadequate reasons or bases for its determination that his chronic back condition was not continuous.  The Court agreed that the Board, after conceding an in-service back injury, erred in not obtaining a new medical opinion to address whether the Veteran’s current back condition is related to that injury.  Therefore, the Board lacked sufficient information to make its decision on this matter.  Additionally, the Court found that the Board provided inadequate reasons or bases for its determination that the Veteran did not suffer continuing back-related symptoms after service.  Here, the Board erred in relying on the absence of contemporaneous medical evidence in rendering its continuity-of-symptoms determination.

Accordingly, the Court decided that remand is warranted for the Board to obtain new VA medical opinions that adequately address whether the Veteran’s Paget’s disease is related to Agent Orange exposure or ionizing radiation exposure and the relationship between his current low back condition and his in-service back condition.

To read the Court’s full decision, click here.

Category: Court Wins

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