Citation Nr: 1741981 Decision Date: 09/25/17 Archive Date: 10/04/17 DOCKET NO. 16-25 128 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for disability of the lumbar spine. REPRESENTATION Veteran represented by: Penelope E. Gronbeck, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from August 1961 to August 1964. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. After the decision was entered, the case was transferred to the jurisdiction of the RO in Chicago, Illinois. In August 2016, the Veteran testified at a Board video-conference hearing before the undersigned. Unfortunately, a transcript of the hearing could not be produced due to technical difficulties associated with the recording. The Veteran and his attorney were offered an opportunity to testify at another Board hearing, but declined. See letter from the Veteran's attorney dated in March 2017. In March 2017, the Veteran's attorney submitted a notice of disagreement (NOD) with respect to a February 2017 rating decision that denied service connection for Alzheimer's disease, a heart condition, and diabetes. Thus far, she and the Veteran have not been furnished a statement of the case (SOC) addressing those matters. See, e.g., 38 C.F.R. § 19.29. However, it appears clear that the AOJ is aware of the NOD and is continuing to work on those issues. Therefore, they will not be remanded at this time. Cf. Manlincon v. West, 12 Vet. App. 238 (1999). FINDINGS OF FACT 1. The Veteran has chronic strain and degenerative arthritis of the lumbar spine with left lower extremity radiculopathy. 2. The disability of the Veteran's lumbar spine is due to injury in service. CONCLUSION OF LAW The criteria for service connection for disability of the lumbar spine, diagnosed as chronic strain and degenerative arthritis of the lumbar spine with left lower extremity radiculopathy, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection is warranted where the evidence establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to prove service connection, there must be evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In the present case, there is no dispute that the Veteran suffers from current disability of the lumbar spine. The report of an August 2013 VA medical examination clearly reflects that he has chronic strain and degenerative arthritis of the lumbar spine with left lower extremity radiculopathy. There is also no real dispute that the Veteran injured his back during service. His service records clearly reflect that he was treated for low back pain in January 1964 after falling on ice, that he was found at that time to be suffering from point tenderness over the sacroiliac joints, as well as mild muscle spasm, and that he was placed on restrictions with no heavy lifting for one week. The Veteran has also credibly described an injury he sustained to his low back during service while lifting steel plates during the construction of a bridge; for which he did not report to sick call. As to the nexus, or link, between the currently shown disabilities and service, the record contains an October 2016 medical opinion from a private orthopedic surgeon, Dr. Graf. After reviewing the Veteran's claims file-which included, among other things, evidence of a subsequent back injury in 1968-Dr. Graf concluded that it was more likely than not that the degenerative changes in the Veteran's low back (identified as facet arthropathy and L4-5 disc space narrowing) were anatomical changes that initiated during his period of active duty, as a result of in-service injury. Dr. Graf reasoned that the lifting of heavy bridge plates likely caused chronic inflammation that led to the Veteran's disability. The October 2016 opinion contains clear conclusions with supporting data, and a reasoned medical explanation connecting the two. As such, it has significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Although the record contains another, unfavorable medical opinion, from a VA examiner (the report of which is dated in August 2013), that opinion is no more probative than that obtained from Dr. Graf. It light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for disability of the lumbar spine, diagnosed as chronic strain and degenerative arthritis of the lumbar spine with left lower extremity radiculopathy, have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102. ORDER Service connection is granted for chronic strain and degenerative arthritis of the lumbar spine with left lower extremity radiculopathy. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs