Citation Nr: 18148155 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 09-37 925 DATE: November 6, 2018 ORDER Entitlement to service connection for lumbar degenerative joint disease with radiculopathy to both lower extremities is granted. FINDING OF FACT The Veteran’s lumbar degenerative joint disease with radiculopathy to both lower extremities is related to an in-service injury. CONCLUSION OF LAW The criteria for service connection for lumbar degenerative joint disease with radiculopathy to both lower extremities have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1973 to February 1974, with additional service in the Army National Guard of Atlanta. In December 2016, the Board denied the Veteran’s claim. The Veteran appealed. The Veteran subsequently died in January 2018, and the Appellant is his surviving spouse. In May 2018, the United States Court of Appeals for Veterans Claims (Court) vacated the December 2016 decision on the ground that the Board erred in its credibility finding by failing to address the Veteran’s lay statements about in-service injury. The Board will not at this time assume jurisdiction over the claim of entitlement to an increased rating for a neck disorder. That appeal has been addressed by the Court in an October 2018 decision. A 90-day letter has not yet issued. For this reason, the Board will not at this time assume jurisdiction over the Appellant’s neck claim. 1. Entitlement to service connection for lumbar degenerative joint disease with radiculopathy to both lower extremities Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical 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) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). These elements are satisfied. The first element is satisfied, in that an October 2016 private medical opinion contains a diagnosis of lumbar degenerative joint disease with radiculopathy to both lower extremities. The second element is satisfied, in that the Veteran testified that his low back pain began after a November 1974 in-service injury. The nexus element is also satisfied. An October 2016 private medical opinion notes that the Veteran had no back problems until the 1974 injury. Service treatment records indicate no back treatment and complaints following the injury. However, the Veteran credibly stated that he continued to experience back pain after the injury but did not report that he was experiencing back pain because he did not want to be forced out of the National Guard. In light of the degenerative nature of the Veteran’s back disorder and the timing of his symptoms, the October 2016 private medical opinion concludes that the Veteran’s lumbar degenerative joint disease with radiculopathy to both lower extremities is at least as likely as not related to the in-service injury. This medical opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301–02 (2008). The nexus element is therefore satisfied. The October 2016 private medical opinion is also more probative than the VA medical opinions of record. A December 2011 VA medical opinion concludes that the Veteran’s back disorder is less likely than not related to service because there is no in-service medical evidence of any residuals after his 1974 injury. A December 2014 VA medical opinion comes to the same conclusion based on essentially the same rationale. As neither of these opinions addresses the Veteran’s lay statements about in-service back pain, the VA opinions contain a weaker rationale and are less probative than the October 2016 private medical opinion. Because the evidence supports the existence of a nexus between the Veteran’s current back disorder and service, the Appellant is entitled to prevail with respect to her claim. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel