Citation Nr: 18151030 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-42 287 DATE: November 16, 2018 ORDER Service connection for intervertebral disc syndrome (IVDS) with herniated discs from L2-S1 is granted. FINDING OF FACT The Veteran’s thoracolumbar spine disability is due to injury incurred in active service. CONCLUSION OF LAW The criteria for service connection for IVDS with herniated discs from L2-S1 are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from February 1994 to May 1997, March to November 2004, August 2007 to February 2009, and May 2010 to May 2011, with service in the Republic of Afghanistan as a Special Forces Engineer from July 2010 through March 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). No lumbar spine disorder noted in the Veteran’s enlistment examination in September 2006 prior to his August 2007 deployment. It does not appear that the Veteran underwent any examination prior to his May 2010 deployment; during that deployment, the Veteran was noted to have treatment for a lumbar strain that was sustained in combat. He was given rest. A June 2010 sick slip documents that he had severe lower back pain due to an injury and he was taken out of airborne duty for one week at that time. In his April 2011 post-deployment report of medical assessment, the Veteran indicated that he saw a physical therapist during his deployment for lower back pain. The medical examiner at that time noted that the Veteran had recurring low back pain; the examiner further noted that the Veteran “injured his lumbar back + several y[ea]rs,” and that he “aggravated” his back during his last deployment. Within a month of discharge from service, the Veteran was seen by VA for complaints of low back pain. After examination, the Veteran was diagnosed with “low back pain” with symptoms that were “gradually progressing,” with “onset while in Military.” He did not have any neurological deficits and only had “mild localized tenderness” at that time, with a normal range of motion. Similar findings were noted in a June 2012 VA treatment record, which noted that the Veteran had mild low back pain “on and off.” Statements from the Veteran throughout the appeal period indicate that he has had continued low back pain since discharge from service. In his February 2013 notice of disagreement, he explained that he felt his low back pain was from carrying rucksacks and wearing body armor in training and during combat operations as a Special Forces operator in Afghanistan. He indicated that his low back pain has slowly worsened over the years since his discharge from service. The Veteran eventually took a job in Tajikistan and he was unable to present for his scheduled October 2012 VA examination. After years of working with the RO, the Department of State, and the American Embassy in Tajikistan, the Veteran eventually obtained an examination from a local examiner in Tajikistan in October 2015; an October 2015 MRI scan and a Thoracolumbar Spine Disability Benefits Questionnaire (DBQ) demonstrate diagnosis of IVDS of the thoracolumbar spine with herniated discs from L2-S1. After receipt of those documents from the local Tajikistani doctor, the Agency of Original Jurisdiction (AOJ) obtained an addendum medical opinion from a VA examiner in July 2016, who opined that the Veteran’s thoracolumbar spine disability was less likely than not related to military service. Her rationale was as follows: Per the available records, the Veteran had been treated in service for localized low back pain. There are no records that note any radicular component to his back complaints in the available record. In June of 2011, he was evaluate[d] at the VA for moderate low back pain. On that exam as well, he had localized low back pain without any radicular component and specifically noted was that straight leg testing was negative. In June of 2012, he was seen again at VA, noted to have mild low back pain off and on and again no radicular symptoms noted in record. There are no medical records between 2012 and 2015. The VA examination dated 2015 noted that he was diagnosed with multilevel disc disease with herniated discs and radiculopathy (IVDS). On that exam, he had right sided leg symptoms marked as positive. Based on the above available information, the Veteran's diagnosis of radiculopathy and IVDS with multiple herniated discs is not consistent with his symptoms in service or up until 2012. He had no radicular or radiating symptoms noted in the VA or military record. Radiculopathy occurs with compression of nerve roots in the spine and is characterized by radiating pain beyond the low back area. In the military medical and VA records, pain was only noted as localized and in 2012, noted as mild and intermittent, inconsistent with his VA exam in 2015. Therefore, based on the information provided, the Veteran's diagnosis of IVDS with radiculopathy is not consistent with his complaints and physical exam findings in service and for VA exams in 2011 and 2012 and therefore is less likely than not (less than 50 percent probability) was caused by or incurred during his military service. Based on the foregoing evidence, the Board finds that the Veteran’s current thoracolumbar spine disability is the result of injury incurred in service and therefore service connection is warranted in this case. As noted above, the Veteran is shown to have a current thoracolumbar spine disability and he is noted to have a back injury during combat during his most recent deployment to Afghanistan. The first two elements of service connection are therefore met. The Board acknowledges the July 2016 VA examiner opinion. However, that examiner did not address the noted service records documenting the injury and the treatment for severe back pain during military service. The examiner further did not address the Veteran’s wearing of body armor, carrying of rucksacks, and participating in airborne and combat operations during military service in Afghanistan as a Special Forces Engineer. The examiner also did not discuss the Veteran’s highly competent and credible statements that he has had ongoing back pain and worsening symptomatology since discharge from service with respect to his back. Nor did the examiner address the June 2011 examiner findings that the Veteran’s back problems at that time, which included gradually worsening symptoms and back pain, were “onset during military service.” Finally, although the examiner noted that the symptomatology in 2011 and 2012 were different and worse from the noted symptomatology in the 2015 DBQ, the examiner inexplicably and significantly did not address whether the current presentation of symptoms is an obvious progression of the thoracolumbar spine injury noted in service and within one month of discharge therefrom. The Board finds that the July 2016 VA examiner’s opinion has very little probative value. Rather, the other evidence of record, including the Veteran’s statements regarding ongoing symptomatology related to his back during combat in military service, as well as the June 2011 examiner’s findings that the Veteran’s thoracolumbar spine was “gradually worsening” and had onset in military service., the Board finds that such evidence is vastly more probative than the July 2016 VA examiner’s opinion. (Continued on the next page)   Consequently, service connection for the Veteran’s current thoracolumbar spine disability of IVDS with herniated discs from L2-S1 is warranted based on the evidence of record in this case. See 38 C.F.R. § 3.303. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel