Citation Nr: 20002291 Decision Date: 01/10/20 Archive Date: 01/14/20 DOCKET NO. 08-21 477 DATE: January 10, 2020 ORDER Service connection for a low back disability is granted. Service connection for a bilateral leg disability is granted. FINDINGS OF FACT 1. The Veteran has a diagnosis of lumbar spine degenerative disc disease (i.e., arthritis). A May 2012 Board decision conceded an in-service injury based on competent and credible lay reports. The Veteran has also provided several competent reports (including in sworn August 2010 and November 2016 testimony) of continuous, intermittently recurring and remitting back pain since service. Post-service records confirm such back problems date back to at least 1990 and while he seems unsure if he sought treatment for his back symptoms prior to that, it is notable that a separation report of medical history indicates he was wearing a “brace or back support” at the time and, crucially, he did not deny recurrent back pain, but rather responded “Don’t Know”. Moreover, large portions of his VA treatment records are unavailable and there is no other contemporaneous post-service medical evidence directly confirming or refuting his competent reports, though there are prior private records noting he denied prior injuries or back problems. However, the Veteran has consistently said the severity of his symptoms vary widely with weather changes (from manageable in warm weather to severe in colder, cloudy, or rainy weather) and, more recently, pointed out that he returned to much warmer weather after separation (in Louisiana and Mississippi as compared to Germany) and felt this might explain why he might not have noticed or been more proactive about getting treatment at the time. However, he reported that, over time, his symptoms became impossible to ignore. Considering the unavailability of VA treatment records that could shed further light on the period between 1979 and 1990 (by no fault of the Veteran) and the fact that his recollections surrounding the initial injury and subsequent treatment are relatively detailed (and include contextual nuances, such as the fact the Veteran remembered his doctors saying his back and leg problems would persist “until the cows come home” because he had never heard that term used before), the Board finds the evidence is at least in relative equipoise as to whether there is competent, credible, and probative evidence of continuous back pain since a conceded injury in service. Therefore, service connection for his documented low back arthritis is warranted based on continuity of symptoms under 38 U.S.C. § 1112. Critically, while all medical opinions of record are negative, they have also been previously deemed inadequate and the most recent July 2019 VA expert medical opinion is no exception because it is nonresponsive to the Board’s questions and inexplicably notes conclusions that appear patently inconsistent with confirmed medical evidence of record (e.g., “I am unable to find any objective test which would document a disability,” despite several X-rays of record confirming degenerative changes in the lumbar spine). Therefore, those opinions are not probative. 2. As the Veteran has documented diagnoses of bilateral lower extremity lumbar radiculopathy and the Board is granting service connection for lumbar spine degenerative disc disease, the Board finds the evidence is also at least in relative equipoise as to whether service connection for the former is warranted as secondary to the latter. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309. 2. The criteria for service connection for a bilateral leg disability have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1978 to June 1979. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2007 rating decision. In August 2010 a hearing was held before one of the undersigned Veterans Law Judges (VLJs). Thereafter, the Board denied service connection for low back disability and remanded the other matters in May 2012. However, that denial was vacated in June 2014 and remanded to arrange for a second hearing in August 2014. In November 2016, a second hearing was held in all three issues on appeal by the other undersigned VLJ, who then remanded the appeal for additional development in March 2017. (CONTINUED ON NEXT PAGE)   The Veteran was offered a third hearing before another VLJ but declined by December 2016 correspondence. In any case, for the reasons outlined above, this is a full grant of benefits sought obviating the need for further detailed discussion and the potential for prejudicial harm due to duty to assist or notice defects. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yuan, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.