Citation Nr: 20004474 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 13-34 282 DATE: January 21, 2020 ORDER Service connection for lumbar spine degenerative arthritis with L5-S1 synovial facet cyst is granted. Service connection for left lower extremity radiculopathy is granted. FINDINGS OF FACT 1. Lumbar spine degenerative arthritis with L5-S1 synovial facet cyst was incurred in service. 2. Left lower extremity radiculopathy is proximately due to service-connected lumbar spine degenerative arthritis with L5-S1 synovial cyst. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lumbar spine degenerative arthritis with L5-S1 synovial facet cyst are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for left lower extremity radiculopathy as secondary to lumbar spine degenerative arthritis with L5-S1 synovial cyst are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from August 1972 to October 1979 and from December 2003 to January 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision. It was previously remanded by the Board for additional development in July 2015 and October 2017. Service Connection 1. Lumbar spine degenerative arthritis with L5-S1 synovial facet cyst Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The evidence, including a December 2015 VA examination, documents a diagnosis of lumbar spine degenerative arthritis with an L5-S1 synovial facet cyst. The Veteran has not alleged, and the evidence does not otherwise show, that this disability is related to his first period of service from 1972 to 1979. Rather, he asserts it is related to his second period of service from December 2003 to January 2005. Private treatment records dated December 2002, prior to his second period of service, show complaints of low back pain. An x-ray documented hypertrophic bilateral L5-S1 facet arthrosis. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1132. Here, a December 2003 pre-deployment questionnaire was negative for any complaints related to the low back or lumbar spine, and there is no indication the Veteran was otherwise examined at that time. Because there was no diagnosis of a lumbar spine disability at the start of this second period of service, the Veteran is presumed to have been in sound condition at that time. In such instances, the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). “Clear and unmistakable evidence” is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” Cotant v. Principi, 17 Vet. App. 116, 131 (2003). The Board finds that the Veteran’s lumbar spine disability clearly and unmistakably preexisted service. Not only is there objective evidence of the disability shown in the December 2002 x-ray, but VA opinions from December 2015 and May 2019 stated that the disability clearly and unmistakably preexisted service. However, the evidence does not show that the disability clearly and unmistakably was not aggravated by service, as a December 2004 post-deployment questionnaire noted a report of back pain. The December 2015 VA examiner stated that the condition was not aggravated by service, but this was based on the false conclusion that there was no complaint of back pain during service. Indeed, there is no VA opinion of record which adequately states that the condition was not aggravated by service. Therefore, the second prong of Horn has not been satisfied. If the presumption of soundness has not been rebutted, the disease or injury that manifested in service is deemed incurred in service. See Gilbert v. Shinseki, 26 Vet. App. 48, 53 (2013) (citing Horn v. Shinseki, 25 Vet. App. 231, 236 (2012)). For service connection, a claimant still must establish that he has a current disability that is related to the in-service injury or disease. Gilbert, 26 Vet. App. at 52. In that regard, a November 2017 VA opinion stated that the bilateral facet arthrosis documented in December 2002 is a finding of osteoarthritis resulting from degenerating discs. Certain chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Based on the November 2017 VA opinion, and in light of the above holding in Gilbert, the Board concludes that osteoarthritis had its onset during service. Because this is a chronic condition with no intercurrent cause shown by the evidence, the Board finds that service connection is warranted. 2. Left lower extremity radiculopathy Service connection is warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Several pieces of evidence, including a December 2015 VA examination, document that the Veteran has a diagnosis of left lower extremity radiculopathy associated with his lumbar spine degenerative arthritis with L5-S1 synovial facet cyst. There is no evidence to refute this finding or otherwise indicate another etiology for the left leg disability. Therefore, the Board finds that service connection for left lower   extremity radiculopathy as secondary to the service-connected lumbar spine disability is warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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.