Citation Nr: 18152450 Decision Date: 11/23/18 Archive Date: 11/21/18 DOCKET NO. 13-24 385 DATE: November 23, 2018 ORDER Service connection for L5-S1 lytic spondylolisthesis is granted. Service connection for radiculopathy of the right lower extremity, as secondary to service-connected L5-S1 lytic spondylolisthesis, granted. Service connection for radiculopathy of the left lower extremity, as secondary to service-connected L5-S1 lytic spondylolisthesis, granted. REMANDED Service connection for a psychiatric disorder, to include depression and anxiety, is remanded.   FINDING OF FACT 1. The Veteran’s L5-S1 lytic spondylolisthesis is related to service. 2. The Veteran’s radiculopathy of the right and left lower extremities was caused by his service-connected spondylolisthesis. CONCLUSION OF LAW 1. The criteria for service connection for L5-S1 lytic spondylolisthesis have been met. 38 U.S.C. §§ 101, 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. The criteria for service connection for radiculopathy of the right lower extremity, as secondary to service-connected L5-S1 lytic spondylolisthesis, have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. 3. The criteria for service connection for radiculopathy of the left lower extremity, as secondary to service-connected L5-S1 lytic spondylolisthesis, have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the National Guard from April 1998 to June 1999, and was on active duty for training (ACDUTRA) from June 1999 to August 1999. The case is on appeal from a September 2012 rating decision. In November 2015, the Veteran testified at a Board hearing. In February 2016, the Board denied service connection for a low back disability, sciatic nerve disability, and a psychiatric disorder. The Veteran appealed the Board’s February 2016 decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2017 Memorandum Decision, the Court vacated the decision and remanded the case for readjudication. While these three issues have been in appeal status, the Veteran has also more recently perfected a separate appeal of service connection for a gastrointestinal condition, left hip condition, and sleep disorder. These issues will be the subject of a subsequent Board decision, if in order. 1. Service connection for a low back disability. Legal Criteria 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 veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Active service includes periods of active duty for training (ACDUTRA) when service connection may be granted for disabilities resulting from a disease or injury incurred in or aggravated while performing ACDUTRA. 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6(a), (c). Active service also includes periods of inactive duty training (INACDUTRA) when service connection may be granted for disabilities resulting from an injury incurred in or aggravated while performing INACDUTRA. 38 U.S.C. § 101(23), (24); 38 C.F.R. § 3.6(a), (d). Analysis The Veteran has a present low back disability of L5-S1 lytic spondylolisthesis. The Veteran contends that during a basic training exercise he injured his back by falling 10 to 12 stairs and landing on his rucksack. Service treatment records (STRs) support this event with multiple sick call slips in the summer of 1999 reporting back pain and subsequent physical therapy. The Veteran submitted multiple lay statements from family and friends attesting to the Veteran’s continuous back pain since basic training. The Veteran was on ACDUTRA during this time period. Thus, the injury is potentially eligible for service connection. After the Court’s June 2017 Memorandum Decision, the Board obtained a Veterans Health Administration (VHA) medical expert opinion in June 2018, to include a full review of the file with consideration of the lay statements. The examiner, an orthopedic spine surgeon, opined that the Veteran’s back condition, spondylolisthesis of the L5-S1 level, was more likely than not (greater than 50% probability) directly due to the Veteran’s injury during ACDUTRA in 1999. The examiner provided a persuasive explanation as to this link, including a comprehensive discussion of this type of disability, the medical literature and with consideration of the lay statements. Although a prior August 2012 VA examiner provided a negative nexus opinion as to the claim, the deficiencies of the opinion were pointed out in the Court’s June 2017 Memorandum Decision. Thus, the Board does not accord it much evidentiary weight. In consideration of this evidence, and when resolving reasonable doubt in the Veteran’s favor, the Board finds that he currently has L5-S1 lytic spondylolisthesis that is related to service. See 38 U.S.C. 5107(b); 38 C.F.R. 3.102. Accordingly, service connection is warranted for L5-S1 lytic spondylolisthesis. 2. Service connection for sciatic nerve disability of the right lower extremity. 3. Service connection for sciatic nerve disability of the left lower extremity. Legal Criteria Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Analysis The Veteran currently has a diagnosis of sciatic nerve radiculopathy of both the right and left lower extremities, as noted by the VA examiner in August 2012. At that time the VA examiner provided an opinion that the Veteran’s sciatic nerve was as least as likely as not caused by the result of a specific injury or event (L5-S1 fusion surgery), but that event occurred after the Veteran’s military service. As noted above, the Board has now granted service connection for the low back disability. Thus, the Board finds that the Veteran’s radiculopathy of the right and left lower extremities was caused by his service-connected spondylolisthesis. Accordingly, service connection for radiculopathy of the right lower extremity and radiculopathy of the left lower extremity is warranted on a secondary basis. REASONS FOR REMAND Service connection for a psychiatric disorder, to include depression and anxiety. At the Veteran’s 2012 VA examination, he reported symptoms of anxiety and depression, and being prescribed medication for those disorders by family doctors. The examiner noted that he at least has a history of a diagnosed mental disorder, but denied a current diagnosis per the DSM-IV TR criteria. At a 2013 RO hearing, the Veteran reported depressive symptoms associated with being from a military family, but no longer being in service due to his back injuries. At his November 2015 Board hearing, the Veteran again testified to anxiety and depression symptoms due to his back injuries, leading to missed family functions, holidays, and time with his children. The Board finds that a new VA examination is warranted to assess whether the Veteran in fact has a current psychiatric disorder and, if so, whether it is related to service. The matter is REMANDED for the following action: Schedule the Veteran for a VA psychiatric examination by an appropriate medical professional. The entire claims file must be reviewed by the examiner. The examiner is to conduct all indicated tests. The examiner is to first determine whether the Veteran has a current psychiatric disorder, including one manifested by depression and anxiety. If not, it should be explained why this is so If a psychiatric disorder is identified, the examiner should then provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that it was caused or aggravated by his now service-connected low back disorder. Aggravation is an increase in severity beyond the natural progress of the disease or temporary flare-up. (Continued on the next page)   A rationale or explanation should be provided for any opinion reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Morford, Associate Counsel