Citation Nr: 18140363 Decision Date: 10/03/18 Archive Date: 10/02/18 DOCKET NO. 14-08 472 DATE: October 3, 2018 ORDER The claim of entitlement to service connection for lumbosacral dual level discogenic disease is granted. The claim of entitlement to service connection for right lower extremity radiculopathy as secondary to lumbosacral discogenic disease is granted. FINDINGS OF FACT 1. The Veteran’s lumbosacral dual level discogenic disease is related to his active military service. 2. The Veteran’s right lower extremity radiculopathy is secondary to his lumbosacral discogenic disease. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for lumbosacral dual level discogenic disease have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2018). 2. The criteria for establishing entitlement to service connection for right lower extremity radiculopathy as secondary to lumbosacral discogenic disease have been met. 38 C.F.R. § 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Navy from August 1965 through August 1969. The Veteran participated in an August 2018 Board hearing. Service Connection To establish direct service connection, there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection is warranted for disabilities that are proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was shown in service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id.; Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); Walker v. Shinseki, 708 F.3d 1331, 1336, 1339 (Fed. Cir. 2013) (explaining that “shown as such in service” means “clearly diagnosed beyond legitimate question”). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1338-39. Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence and medical evidence in a case is to be considered by the Board in deciding the claim. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). The Board has an obligation to provide reasons and bases supporting its decision, but there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board’s analysis is to focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 1. Entitlement to service connection for lumbosacral dual level discogenic disease The Veteran seeks service connection for his lumbosacral dual level discogenic disease. The Veteran is service connected for multiple fractures of the mid and lower thoracic vertebrae. On appeal, the Veteran contends that his lumbar spine condition manifested during active service, is secondary to his service-connected thoracic spine condition, or that his lumbar spine condition has been aggravated by the various falls he has experienced that have been caused by his thoracic spine condition. A June 2011 VA examination diagnosed lumbosacral dual level discogenic disease with lumbar radiculopathy, and radiating pain to the right side of the back and right buttocks. The current disability element is met. On the August 1965 induction examination, the Veteran had no defects pertaining to his back noted, and the Veteran is presumed to have been taken in sound condition. 38 C.F.R. § 3.304(b). The Veteran testified of an incident during service where he injured his back. The Veteran caught an approximately 300-pound pump that fell on him. See August 2018 Board Hearing Transcript. The Board accepts this account of the in-service injury as credible. Review of the service treatment records shows a September 1966 report to sick call with complaints of pain in his middle back area. No history of trauma was noted. The Veteran reported thoracic area of his back hurting. A diagnosis of moderately severe kyphosis and minimal scoliosis was noted, and the Veteran was prescribed Darvons. The Veteran returned in October 1966 several times complaining of backache. An October 1966 entry noted the Veteran’s pain over thoracic vertebrae continued, and that conservative prescriptions were to no avail. The Veteran’s back was X-rayed, which showed kyphosis and shortening of the height of the dorsal vertebrae. A December 1966 entry indicated the Veteran returned complaining of back pain, and a diagnosis of a chronic back strain was noted. In a service treatment record backache questionnaire, the Veteran described his pain being a constant dull ache aggravated by bending. In a January 2010 VA examination, the Veteran described that he experienced severe back pain since the time of the 1966 accident. The Veteran described his pain being a constant dull ache in his mid and upper lumbar area being aggravated by bending. The Board has carefully considered the evidence of record. There is a documented back injury in-service and subsequent persistent manifestation of the same complained of symptoms, which are not clearly attributable to any intercurrent cause. See Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008) (medical nexus evidence demonstrating an etiological link is not necessary to prove service connection when evidence shows that a veteran had a chronic disease in service and that he still has the same chronic disease). In addressing the medical nexus element for service connection, the VA examinations of record did not fully consider the claimed injury or all in-service diagnoses, and these medical opinions of record are not dispositive of the question at hand. The Board, however, does not find that remand for additional development is needed here. The evidence of record is at least in relative equipoise as to whether the Veteran’s lumbar spine disability manifested during active duty or is otherwise related to service. As such, service connection for lumbosacral dual level discogenic disease is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. Entitlement to service connection for right lower extremity radiculopathy as secondary to lumbosacral discogenic disease The Veteran’s claimed right lower extremity radiculopathy was confirmed on examination, and was noted on examination as being secondary to his lumbosacral discogenic disease. See June 2011 VA examination. These findings are accepted as factual. As service-connection for the lumbosacral discogenic disease is established, service connection for right lower extremity radiculopathy as secondary to lumbosacral discogenic disease is also warranted, and is hereby granted in accordance with 38 C.F.R. § 3.310. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. C. King, Associate Counsel