Citation Nr: 20006579 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 16-41 790 DATE: January 27, 2020 ORDER Service connection for degenerative disc disease of lumbar spine is granted. Service connection for right leg radiculopathy is granted. FINDINGS OF FACT 1. Competent and credible evidence of record demonstrates that the Veteran’s current degenerative disc disease of lumbar spine had its onset in service. 2. Competent and credible evidence of record demonstrates that the Veteran’s current right leg radiculopathy had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative disc disease of lumbar spine are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right leg radiculopathy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1980 to June 1992. Service Connection Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if preexisting such service, was aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303 (b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. The theory of continuity of symptomatology can be used only in cases involving those diseases explicitly recognized as chronic under 38 C.F.R. § 3.309 (a), such as organic diseases of the nervous system. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a lay person is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service connection for degenerative disc disease of lumbar spine and service connection for right leg radiculopathy The Veteran contends that degenerative disc disease of his lumbar spine and right leg radiculopathy began during active service and has continued since. The Veteran has current diagnoses of degenerative disc disease of lumbar spine and right leg radiculopathy as evidenced by the November 2013 VA examinations. Organic diseases of the nervous system (such as radiculopathy) and arthritis are enumerated conditions under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Service treatment records (STRs) show the Veteran was treated for back pain that radiated down his right leg in April 1991. STRs from April 1991 showed continued complaints of low back pain with pain radiating down his right leg. X-rays at the time showed a mild compression fracture of T-12. Parenthetically, the Board notes that service connection has already been established for residuals of a fracture of T-12. Post-service, private treatment records show that he continued to seek treatment for the same symptoms during the applicable presumptive period, and for decades after. Notably, in December 1996, a private physician stated that his recurrent low back pain with pain radiating down his right leg began during active service in 1991 and continued since. The physician noted that an imaging study found arthritic changes to the Veteran’s lumbar spine, which would explain his low back pain and right leg sciatica/radicular pain. In November 2013, the Veteran underwent a VA examination for back and hip conditions. He was diagnosed with degenerative disc disease of the lumbar spine with lumbar radiculopathy. The Veteran reported low back pain with radicular pain down his right leg since active service. The pain radiated from his low back along his sciatic nerve into his right hip and leg. The examiner found that the Veteran had bilateral mild intermittent radicular pain, paresthesias, and numbness. The examiner found that the Veteran’s degenerative disc disease of the lumbar spine with lumbar radiculopathy was not secondary to his service-connected T-12 compression. The examiner stated that some of the degenerative changes associated with the lumbosacral spine were related to normal age progression, the Veteran’s current occupation which involved some lifting, and the Veteran’s body habitus; however, the examiner did not specifically address direct service connection. In December 2013, the Veteran noted that his back pain and radiating right leg pain began during active service and had continued since. He noted that the November 2013 VA examiner did not address his in-service complaints of low back pain and right leg pain. During his October 2019 Board hearing, the Veteran testified that his low back pain and right leg pain began, and have continued since active service. He noted that he had no back injuries after active service and that his post-service private treatment records documented treatment for low back pain and radiating right leg pain. The Veteran have competently and credibly stated that the Veteran had back pain and radiating right leg pain since active service. The Veteran’s private doctor indicated that the Veteran’s arthritic changes of the low back and right leg sciatica began in service. The Board finds that there is evidence that the Veteran had complaints of a history of back pain and right leg pain for more than one year in service; competent and credible evidence of recurrent back and right leg symptomatology from the in-service injury to the present; and probative evidence of a nexus between the present disability and in-service injury/complaints since service. As such, the Board also finds that entitlement to service connection for degenerative disc disease of his lumbar spine and service connection for right leg radiculopathy is warranted. (Continued on the next page)   Therefore, based on a careful review of the entire record, the Board finds that the probative evidence outweighs the negative evidence as to whether the low back disorder, characterized as degenerative disc disease of his lumbar spine and right leg radiculopathy, are as likely as not is due to the Veteran’s service. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In resolving all reasonable doubt in the Veteran’s favor, service connection for degenerative disc disease of his lumbar spine and service connection for right leg radiculopathy is granted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, Associate 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.