Citation Nr: 18158104 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-06 931 DATE: December 14, 2018 ORDER Entitlement to service connection for lumbar degenerative disc disease and spinal stenosis is granted. Entitlement to service connection for left lower extremity (LLE) radiculopathy is granted. Entitlement to service connection for right lower extremity (RLE) radiculopathy is granted. FINDINGS OF FACT 1. The Veteran’s lumbar degenerative disc disease and spinal stenosis is etiologically related to service. 2. The Veteran’s LLE radiculopathy is caused by his service-connected lumbar disability. 3. The Veteran’s RLE radiculopathy is caused by his service-connected lumbar disability. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar degenerative disc disease and spinal stenosis have been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for service connection for LLE radiculopathy have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018). 3. The criteria for service connection for RLE radiculopathy have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1946 to July 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction of the Veteran’s claims was subsequently transferred to the RO in Phoenix, Arizona. In October 2017, the Board denied the Veteran’s claim of entitlement to service connection for spinal stenosis with post-operative L3-S1 right sensory radiculopathy and fusion (claimed as back condition). An appeal followed. In June 2018, the United States Court of Appeals for Veterans Claims (CAVC) granted the parties joint motion for remand (JMR). Specifically, CAVC set aside the Board’s October 2017 decision denying the Veteran’s claim of service connection for spinal stenosis with post-operative L3-S1 right sensory radiculopathy and fusion, and remanded the matter to the Board for readjudication consistent with the JMR. In doing so, the Court indicated, in pertinent part, that the Board erred in relying on inadequate March 2012 VA examination as the bases for its denial of the Veteran’s claim. Lastly, the Board notes it has recharacterized the issues on appeal as it appears on the cover page. In making this determination, the Board notes the Veteran has been diagnosed with varying lumbar disabilities, including spinal stenosis and degenerative disc disease with corresponding neurological abnormalities, i.e., radiculopathy. As such, the Board has broadened the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for a lumbar disorder, including spinal stenosis and degenerative disc disease Based on a review of the evidence, the Board finds that entitlement to service connection is warranted. First, the Board finds there is a current disability, and thus, the first element of service connection is satisfied. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). For instance, private medical treatment records dated in August 2011 reflect a diagnosis of degenerative disc disease. In a September 2018 statement, a private physician who reviewed the claims file provided diagnoses of lumbar degenerative disc disease and stenosis. A March 2012 VA lumbar examination reflects a diagnosis of spinal stenosis with post-operative L3-S1 radiculopathy. Accordingly, there are current lumbar spine diagnoses. Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran has consistently reported that he experienced ongoing lumbar pain in and after service. In particular, the Veteran reported experiencing ongoing lumbar pain stemming from a 1947 aircraft accident. This is corroborated by the Veteran’s service treatment records (STRs). STRs dated in May 1960 reflect the Veteran reported ongoing backaches. STRs dated in June 1960 note that the Veteran presented with persistent backaches located at the L-S junction. At that time, the Veteran was given a provisional diagnosis of lumbar strain. Treatment records dated in May 1968 reflect ongoing pain and stiffness in the Veteran’s back. Treatment records dated in June 1969 reflect the Veteran presented with ongoing low back pain. Physical examination revealed tenderness over the dorsal lumbar region with painful flexion and extension. That same month, imaging studies revealed an increase in lumbosacral carrying angle which can cause low back pain. STRs dated in December 1973 confirm that the Veteran was involved in an aircraft accident in 1947. Lastly, a December 1973 service discharge report of medical history reflects the Veteran’s report of recurrent back pain. The discharge examination noted normal spine. Lastly, the Board finds that the evidence of record supports a finding that the Veteran’s lumbar disability is caused by or otherwise etiologically related to service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A September 2018 statement from a private physician was received. The physician noted that he reviewed the claims file and conducted an interview of the Veteran’s daughters, noting that the Veteran currently had dementia. The examiner opined that the lumbar degenerative disc disease and stenosis were at least as likely as not a result of the Veteran’s in-service injury, noting that numerous back pain complaints in the STRs. The physician also highlighted the ongoing symptomatology reported by the Veteran and documented in the post-service medical treatment records. The Board acknowledges the negative nexus opinion provided in the March 2012 VA examination report. The examiner relied primarily on the absence of contemporaneous documentation following service and noted there was not a “strong nexus” between the in-service crash and the current back disorder. The Board finds this examination inadequate as it ignored the Veteran’s lay statements and it isn’t clear whether the examiner applied the appropriate legal standard, i.e., a 50 percent or better probability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (generally noting that an examiner cannot ignore lay evidence that is found to be credible). Thus, the Board accords the March 2012 VA examination no probative value. The Veteran has stated that he had back symptoms since service discharge and that he relocated to Canada following military service and sought treatment there, although those records are no longer available. The Board finds these statements both competent and credible as they have been consistent. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The statements are also consistent with private medical treatment records dated in June 2011, in which the Veteran reported persistent lumbar pain with initial onset in 1947 and present since that time. This is further strengthened by lay evidence provided by the Veteran’s children who, collectively, reported first-hand observations of the Veteran’s ongoing lumbar pain to the September 2018 private examiner. Based on the above, the Board finds that the medical evidence is, at the very least, in equipoise as to whether the Veteran’s lumbar disability is etiologically related to his active military service. Therefore, resolving reasonable doubt in the Veteran’s favor, service connection for a lumbar disability is warranted. 2. Entitlement to service connection for LLE radiculopathy, to include as secondary to service-connected lumbar spine disability 3. Entitlement to service connection for RLE radiculopathy, to include as secondary to service-connected lumbar spine disability Based on a review of the evidence, the Board finds that entitlement to service connection for LLE and RLE radiculopathy is warranted as the probative evidence of record demonstrates the Veteran’s radicular pain and numbness is proximately due to or the result of his service-connected lumbar disability. Allen, 7 Vet. App. at 448 (1995) (en banc); 38 C.F.R. § 3.310 (2018). In a September 2018 report, a private examiner opined that the Veteran’s bilateral lower extremity radiculopathy is at least as likely as not proximately due to or a result of his lumbar disability, noting the development of radiculopathy is consistent with the diagnoses of lumbar spinal stenosis and degenerative disc disease. Further, the physician noted that the claims file showed consistent diagnoses of sciatica. This is consistent with the remaining medical evidence of record. For instance, private medical treatment records dated in August 2011 reflect the Veteran reported persistent lumbar pain with numbness into the lower extremities. At that time, the diagnosis was sciatica of the lower extremities. Based on the above, the Board finds that the medical evidence supports service connection for LLE and RLE radiculopathy secondary to the Veteran’s service-connected lumbar disability. Accordingly, the appeal is granted. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel