Citation Nr: 18143136 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 16-14 738 DATE: October 18, 2018 ORDER Entitlement to service connection for lumbar radiculopathy is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for lumbosacral strain prior to December 16, 2015, and in excess of 20 percent therefrom, is remanded.   FINDING OF FACT Lumbar radiculopathy became manifest during service. CONCLUSION OF LAW The criteria for an award of service connection for lumbar radiculopathy are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1983 to November 1987 and from October 1989 to October 1993. Service connection for lumbar radiculopathy A Department of Veterans Affairs (VA) Regional Office (RO) established service connection for the Veteran’s low back disability. The RO described the disability as lumbosacral strain, and made service connection effective from his separation from his later service period. The Veteran reports that he also has lumbar radiculopathy, manifested by radiation of low back pain into his buttocks and lower extremities. He states that these symptoms began during his active service. He contends that the symptoms are related to his service-connected low back disability. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b). During the Veteran’s second service period, he was seen in December 1990 for low back pain. He reported that the pain began three weeks earlier, as he was taking a washer and dryer up some stairs. He stated that after the initial pain he had intermittent pain, with radiation of the pain down his right leg. He indicated that he experienced pain with prolonged sitting or standing. A clinician found evidence of tenderness in the L5-S1 area. The clinician’s assessment was facet joint arthralgia and back muscle strain. In May 1993, in preparation for separation from service, the Veteran completed a medical history. He marked yes for history of recurrent back pain and for history of leg cramps. On the report of a May 1993 separation examination, the examiner noted recurrent low back pain. After service, on VA examination in June 1994, the Veteran reported that during service he lifted heavy objects frequently and fell frequently. He indicated that he had low back pain during service. He stated that presently he had low back pain with radiation of pain into his buttocks, and down his legs as far as his knees. He related that recently pain radiated into his right leg down to his heel. He reported occasional weakness of both legs. He stated that the pain was worse with prolonged sitting or standing. The examiner observed evidence of low back pain with forward flexion and with extension. The straight leg raising test was negative bilaterally. On lumbosacral spine x-rays, there was no evidence of disc space narrowing. The examiner provided a diagnosis of lumbosacral strain. The claims file contains records of post-service treatment of the Veteran at service department clinics. In treatment in January 1997 he reported history of back injury five years earlier. He related a two-week history of a flare-up of back pain, accompanied by right leg numbness. In July 2003 he was seen for a one-week history of low back pain. In November 2004, he reported back injury in service and subsequent episodes of low back pain. He related a current flare-up beginning the day before the treatment visit. A clinician found palpable lumbar muscle spasm. The straight leg raising test was negative. In private treatment in February 2010, MRI of his lumbosacral spine showed right-sided lateral prolapse of the L5-S1 disc. The MRI also showed evidence of beginning spondylarthrosis. In March 2010, the Veteran reported a several-year history of recurrent back pain. He stated that in September 2008 he had acute lumbago, with radiation of pain into his right buttocks, and down the back of that thigh to the calf. In June 2010 the Veteran requested service connection for radiation of low back pain into the lower extremities. He stated that in September or October 2009, during a several-day flare-up of low back pain and spasm, he experienced pain down his entire right leg. He related that a physician treated him with a cortisone injection. He reported that in February 2010, during another low back pain flare-up, he again had pain down his entire right leg. He noted that MRI showed a prolapsed spinal disc. He related that treatment included shots, oral medication, and physical therapy. He stated that with treatment the back pain decreased, and the leg pain resolved, but he continued to have parasthesia in the leg. In an August 2010 letter, the Veteran’s then-current wife wrote that the Veteran had episodes of severe low back pain. She stated that in 2009 and 2010 his low back pain radiated into his right buttock and leg, and sometimes into his left buttock and leg. The Veteran’s former wife also submitted a letter in August 2010. She indicated that from the early 1990s through 2005 she observed the effects of his low back pain. She stated that in the 1990s he told her that his low back pain radiated into his buttocks and occasionally down a leg, sometimes the right and sometimes the left. In September 2010 a local physician performed a VA examination of the Veteran in Germany, where the Veteran resided. The Veteran reported that during service he fell while carrying equipment and experienced back pain. He stated that back pain recurred with physical exertion, and had worsened over time. He reported that low back pain sometimes radiated into the right buttock and down that leg as far as the heel. The examiner found significant pressure pain at L5-S1. He reviewed reports of MRI and x rays, and noted evidence of disc prolapse and reduced disc spaces. His diagnosis was chronic right-sided sciatica with L5-S1 disc prolapse and sensory radiculopathy. In September 2011 a VA clinician reviewed the Veteran’s claims file. The reviewer summarized some medical records, but did not discuss the service medical records. The reviewer expressed the opinion that the current disc prolapse and radiculopathy were not a progression of his service-connected lumbar strain. In November 2011, the clinician who provided the September 2011 opinion provided another review, including review of treatment records form 1997, 2003, and 2004. She opined that lumbar strain that the Veteran experienced in 1994 was not significant enough to produce his current chronic lumbar spine issues. In an August 2012 statement, the Veteran reported that current symptoms in his low back, buttocks, and legs began during his service in the early 1990s and continued after service through the present. He submitted an online medical article, on which he highlighted an indication that disc herniation can be caused by trauma or lifting injuries. In December 2015 a VA physician reviewed the Veteran’s claims file. The reviewer expressed the opinion that it is less likely than not that the Veteran’s right lower extremity radiculopathy is proximately due to or the result of his lumbar strain. He noted that radiculopathy was not documented during active service. The Veteran reported that his low back pain was accompanied by pain or numbness into the buttocks and legs during service, in December 1990, in June 1994, less than a year after his separation from service, and again in January 1997. His former wife later corroborated that in the 1990s his low back pain was accompanied by pain in the buttocks and legs. Medical records and personal statements support the claim that radiating symptoms occurred during service and continued and recurred after service. The 2015 VA reviewer found no documentation of radiculopathy during active service, but he did not discuss the service report of radiation of pain into the buttocks and legs. The evidence of radiating pain during service, soon after service, and later is at least as persuasive as the opinions against a nexus. Giving the benefit of the doubt to the Veteran, the Board grants service connection for lumbar radiculopathy. REASONS FOR REMAND Higher disability ratings for lumbosacral strain The Board is remanding this issue for a new VA examination. On June 8, 2010, VA received the Veteran’s claim for an increase in the existing 10 percent rating for his lumbosacral strain. In a January 2012 rating decision, the RO continued the 10 percent rating. The Veteran appealed that decision. In a January 2016 rating decision, the RO increased the rating to 20 percent, effective June 8, 2010. The Veteran continued his appeal, seeking ratings higher than 10 percent before June 8, 2010, and higher than 20 percent from June 8, 2010. The report of a December 2015 VA examination relates the ranges of motion of the Veteran’s thoracolumbar spine. That report contains a notation that there was evidence of pain with weightbearing, but does not indicate whether there was pain on both active and passive motion. As no examination report has fully satisfied the requirements of Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017), a new examination is necessary. The matter is REMANDED for the following action: (Continued on the next page)   Schedule the Veteran for a VA examination to assess the severity of the service-connected. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. J. Kunz, Counsel