Citation Nr: 18158547 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-25 407 DATE: December 17, 2018 ORDER Entitlement to service connection for lumbar degenerative joint and disc disease is granted. Entitlement to service connection for bilateral lower extremity radiculopathy is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s current lumbar degenerative joint and disc disease is related to active service or events therein. 2. Medical evidence shows bilateral lower extremity radiculopathy is associated with the Veteran’s service-connected lumbar spine disorder. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, lumbar degenerative joint and disc disease was incurred during active service. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. § 3.102, 3.303. 2. Bilateral lower extremity radiculopathy is secondary to service-connected lumbar spine disorder. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to May 1968. Additional evidence was added to the record following certification. To the extent it was submitted by the Veteran, automatic waiver applies. 38 U.S.C. § 7105(e). In December 2018, the representative waived RO consideration of any additional evidence. Service Connection In October 2015, VA denied entitlement to service connection for a lumbar spine disorder, characterized as lumbar strain, degenerative disc disease, intervertebral disc syndrome, scoliosis and kyphosis, claimed as arthritis and back injury. VA also denied entitlement to service connection for bilateral lower extremity radiculopathy. The Veteran disagreed and perfected this appeal. The Board has rephrased the lumbar spine issue as lumbar degenerative joint and disc disease, which reflects the diagnoses of degenerative disc disease, spondylosis, and arthritis. See June 12, 2017 private medical record. The Veteran is not prejudiced by this action. Bernard v. Brown, 4 Vet. App. 384 (1993). 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Arthritis will be presumed to have been incurred inservice if it was manifested to a compensable degree within one year following discharge from active duty. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection may also be granted on a secondary basis for a disability that is proximately due to a service-connected condition. 38 C.F.R. § 3.310(a). Entitlement to service connection for lumbar degenerative joint and disc disease The Veteran contends he has a lumbar spine disorder related to military service. Specifically, he reported that during his Vietnam service, he lifted 40-pound tank shells while crouching and twisting; lifted over 100-pound electrical generators onto high trucks; and carried two M-60 ammo gun cans, each weighing over 20 pounds, while crouching, running, falling and twisting. He argues that this injured the joints in his spine. In December 2018, the representative argued that the elements for direct service connection were established, and if the Board did not grant on that basis, it should consider whether a back disorder is secondary to the Veteran’s service-connected knee disorders. The Veteran’s service treatment records are negative for any complaints or findings related to the spine. At the claimant’s separation examination in May 1968, his spine was clinically evaluated as normal on examination and he denied any back trouble on the associated report of medical history. There is no evidence of lumbar spine arthritis manifested to a compensable degree within one year following discharge from active service. Service personnel records show the Veteran served in Vietnam and was awarded a Combat Infantryman’s Badge. An April 1993 letter from the Department of the Army, Military Awards Branch, indicates that the Veteran’s official record reflects he was trained as an armor crewman and that the citation for his Bronze Star Medal reflected his duties as a civil affairs specialist for his entire tour. The Army letter stated that there was no reason to doubt that he came under fire on numerous occasions and that under the circumstances, his brigade commander’s decision to award him the Combat Infantryman’s Badge would stand. Given the foregoing, the Board finds the Veteran’s reports of heavy lifting in a combat environment consistent with the circumstances of his service. Hence, there is evidence of an in-service incident or injury. See 38 U.S.C. § 1154. Evidence of record also shows current diagnoses pertaining to the lumbar spine and the question is whether they are related to active duty service or events therein. The Veteran underwent a VA spine examination in September 2015. The examiner, a VA physician (an internist), opined that the claimed lumbar spine condition was less likely than not incurred in or caused by the claimed in-service injury. In support of this opinion, the examiner stated that there was no evidence that the Veteran was evaluated for his back during military service. He was assessed in June 2015 for back pain and diagnosed with lumbar degenerative joint disease, which in the examiner’s opinion was most likely secondary to age-related degeneration in a 72-year old gentleman. In December 2015, Dr. W.B., an orthopedic surgeon and director of a private orthopedic center, stated the Veteran had chronic degenerative arthritis in the lumbar spine. It was this orthopedist’s opinion that facet arthrosis was chronic degenerative arthritis associated with a disc desiccation and consistent with degenerative disc disease. The orthopedist believed that both were directly related to the Veteran’s past military service, and that there was a clear link between these injuries and symptoms that relate back to military service. The orthopedist further stated he believed that the longstanding changes in the Veteran’s back dating to his military time should be considered as such and care should be afforded to him. As set forth, the record contains evidence both for and against the claim. That is, the VA examiner provided a negative opinion, based in part on the absence of in-service treatment, and the Veteran’s private physician provided a positive nexus on that same evidence. It bears noting that as a combat veteran the appellant is entitled to the presumptions provided by 38 U.S.C. § 1154 (When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence “shall be accepted as sufficient proof of service connection” for certain diseases or injuries, even if “there is no official record of such incurrence or aggravation in such service.” Section 1154(b)’s presumption may be rebutted only by clear and convincing evidence.) On review, the evidence is at least in equipoise. Hence, after resolving reasonable doubt in the Veteran’s favor, service connection is warranted. 38 C.F.R. § 3.102; Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). Entitlement to service connection for bilateral lower extremity radiculopathy The September 2015 VA spine examination indicates that the Veteran has radicular pain or symptoms due to radiculopathy. This was due to involvement of the sciatic nerve and described as moderate in the right and left lower extremities. A March 2016 VA record indicates the Veteran has chronic low back pain with lumbar radiculopathy. A September 2016 statement from the Veteran’s private physician, Dr. P.L., indicates the Veteran has back pain with sciatica. (Continued on the next page)   The medical evidence shows that the Veteran has bilateral lower extremity radiculopathy that is related to the now service-connected lumbar spine disorder. Accordingly, secondary service connection is warranted. 38 C.F.R. § 3.310. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Carsten, Counsel