Citation Nr: 18142734 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 14-38 140A DATE: October 17, 2018 ORDER Service connection for lumbar degenerative disc disease (DDD) is granted. Secondary service connection for right leg radiculopathy, as secondary to service-connected lumbar DDD, is granted. FINDINGS OF FACT 1. The Veteran’s current lumbar disc injury, diagnosed a disc herniation, is causally related to his active service. 2. The Veteran’s current right leg radiculopathy is proximately due to his service-connected lumbar DDD. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar DDD have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for secondary service connection for right leg radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from May 1977 to September 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned VLJ in March 2018. A transcript of the hearing is of record. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; 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). 1. Entitlement to service connection for lumbar DDD. The Veteran asserts that his current lumbar DDD was incurred during active service. Specifically, the Veteran reported that in April 1985, while stationed in Okinawa, Japan, he suffered a back injury during a basketball game. The medical evidence of record shows that the Veteran currently has diagnosed DDD that became exacerbated and developed into a disc herniation. See, e.g., VA C&P exam, 06/2011. The service treatment records (STRs) establish an in-service injury. STRs contain five instances of complaint or treatment for a lower back injury, dated 04/1985, 1986, 10/1989, and 06/1991. The Veteran’s separation exam, 07/1991, notes the existence of a back condition and the Veteran’s report of chronic lower back pain. These five entries in the service treatment records establish that the Veteran suffered an in-service lower back injury. Thus, the dispositive issue is whether there is a relationship between the Veteran’s current lumbar disc injury and his military service. Private treatment records submitted by the Veteran contain references to back pain, persistent symptoms since the time of service, and provider opinions that the military injury and the present disability are connected. When visiting Dr. B. in 2008, the Veteran reported current back pain but also stated that he has suffered with back pain on and off for years. The Veteran also had an appointment with Dr. M. in 2008 where he explained that he had a history of intermittent off and on low back pain. In 2010, while visiting Dr. P to receive treatment for the back pain, which included injections for pain, the Veteran reported suffering from pain that prevented him from being able to work. Dr. G., who began treating the Veteran for his back pain in 2011, submitted two letters regarding the connection between the Veteran’s present disability and the in-service injury. In the February 2012 letter, Dr. G. asserted that it is at least as likely as not that the Veteran sustained a back injury while he was in the military, which eventually became sufficiently symptomatic to necessitate surgery and the Veteran currently has a disability. Then in November 2014, Dr. G. elaborated and reported that the Veteran obviously has DDD due to a previous injury which had been exacerbated and became a disc herniation. Dr. G. concluded that it is more probable than not that the DDD is related to the injury in the military in the 1980s. The military injury caused a cascade of events which led to the development of DDD, disc herniation, and eventually surgery. The VA examiner, 06/2011, opined that the lumbar spine DDD is less likely as not (less than 50/50 probability) caused by or a result of active duty low back pain. The rationale provided was that the Veteran did not seek medical treatment as a civilian until 5 years ago and the condition is due to natural aging and deterioration rather than the 1989 active duty complaint. The Veteran has explained in testimony that the culture of the Marines taught him to avoid complaining and to work through the pain to get the job done. However, in 2008, the pain had gotten so bad he could no longer avoid getting treatment. The Veteran also reported that even though he was not seeking treatment during all years, he was suffering from persistent symptoms and missed worked several times due to his back pain. These statements are consistent across various pieces of submitted evidence. The Veteran is competent and credible in his testimony regarding his persistent symptoms and reasons for not seeking treatment. See 38 C.F.R. § 3.159(a)(2), Layno v. Brown, 6 Vet. App. 465, 470 (1994). It is not necessary that the Board find contemporaneous medical evidence in the record to support the testimony and statements of the Veteran regarding his symptoms after service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) The law is clear that it is the Board’s duty to assess the credibility and probative value of evidence, and provided that it offers an adequate statement of reasons and bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Here, the VA examiner focused largely on a lack of treatment records for some years following service to justify the opinion that the present disability was most likely not related to the in-service injury. However, the examination report and other evidence of record reflects that the Veteran offered lay statement regarding his persistent symptoms since service. In light of this, the Board finds that the VA examiner’s lack of emphasis on the Veteran’s lay testimony makes the opinion be entitled to less probative weight. In contrast, the Board finds that the positive medical opinion rendered by the private provider is highly probative as the examiner reviewed the claims file, accurately represented the facts, considered the Veteran’s lay statements, and discussed the history and the development of the Veteran’s current disabilities. Furthermore, the noted facts are entirely consistent with the Veteran’s statements and testimony, as well as with the medical evidence of record. Accordingly, the Board finds that the opinion was factually accurate, fully articulated, and included sound medical reasoning for the conclusions provided. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, the Board finds that the private medical opinion establishes a medical nexus between the in-service back injury and the Veteran’s current disability. Based on the foregoing, the Board concludes that service connection for a lumbar disc disability is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to secondary service connection for weakness/ pain right leg (diagnosed as radiculopathy or sciatica). The medical evidence of record, specifically the private treatment records, show that the Veteran currently experiences right leg radiculopathy. These records sufficiently establish that the Veteran suffers from a current disability based on the diagnosis of radiculopathy. In this decision, the Board has found that the Veteran possesses a separate disability, degenerative disc disease, which is subject to service-connection. Therefore, the dispositive issue is whether the disability of radiculopathy is proximately due to or the result of the service-connected disability of degenerative disc disease. Dr. S. conducted a nerve study in March 2011. The provider found evidence of denervations in the right extensor hallicus longus, extensor digitorum brevis, tibialis anterior, and peroneous longus muscles, suggesting the presence of L5 root lesion on the right side. Dr. P., in an August 2011 exam, diagnosed the Veteran with radiculopathy due to the disc herniation at L4-5. Dr. G. connected the herniated disc associated with the DDD diagnosis to the Veteran’s diagnosis of radiculopathy. The VA examiner opinion did not provide an opinion on whether the leg pain is a result of the DDD. Therefore, the opinions from the private provider that address the radiculopathy as it relates to the degenerative disc disease are afforded greater probative weight. The Board finds that the competent and probative evidence shows that the Veteran’s radiculopathy is due to the diagnosis of degenerative disc disease based on the opinion of the private medical providers. (Continued on the next page)   Based on the foregoing, the Board concludes that secondary service connection for right leg radiculopathy is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.310(a); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Watkins, Law Clerk