Citation Nr: 20049936 Decision Date: 07/27/20 Archive Date: 07/27/20 DOCKET NO. 17-32 204 DATE: July 27, 2020 ORDER Entitlement to service connection for a lumbar spine disability (claimed as low back pain) is granted. REMANDED Entitlement to service connection for a right lower extremity condition, claimed as secondary to a lumbar spine disability is remanded. Entitlement to service connection for a left lower extremity condition, claimed as secondary to a lumbar spine disability is remanded. FINDING OF FACT The Veteran has experienced back pain causing related to his currently diagnosed lumbar spine disability since his separation from service and the weight of the probative evidence demonstrates a nexus between the current lumbar spine disability and active service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Coast Guard from February 1959 to February 1963. This appeal comes before the Board of Veterans’ Appeals (Board) from January 2015 and March 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. This matter was previously remanded in July 2019 for further development, to include requesting the Agency of Original Jurisdiction (AOJ) to request an authorization for private treatment records from the Veteran and obtain VA examination opinions. The development occurred, and thus, the Board finds that its remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a lumbar spine disability (claimed as low back pain) is granted. The Veteran contends he is entitled to service connection for a lumbar spine disability due to a fall from a ladder he experienced during service. 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 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). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303(d). As to the first element of Shedden, for service connection the Veteran must show a current disability. Per the Veteran’s February 2020 VA examination, he has current diagnosis of a lumbar spine compression fracture. The Veteran also has a diagnosis of chronic back pain. See June 2019 VA Treatment Record. As such, the Board finds that the Veteran’s claim meets the first element of Shedden for service connection. As to the second element of Shedden, for service connection the Veteran must show an in-service incurrence of a disease or injury. A May 1960 treatment record from when the Veteran was service notes the Veteran slipped on a ship ladder and complained of intense back pain. Another treatment record from May 1960 shows the Veteran underwent x-rays after the fall and had a diagnosis of lumbar spine fracture. The Veteran has also submitted several buddy/lay statements from fellow soldiers that recall the in-service event of falling from a ladder occurring. Thus, the Board finds that the Veteran’s claim meets the second Shedden element for service connection. As to the last element of Shedden, for service connection the Veteran must show a causal relationship between the current disability and the in-service disease or injury. The Veteran underwent a VA examination in November 2014. The VA examiner opined that the Veteran’s lumbar spine disability is less likely than not related to service as the examiner opined the Veteran’s condition was acute and healed without residuals. However, the Board affords the November 2014 VA examiner’s opinion low probative weight as a treatment record was associated with the Veteran’s claims file after this opinion was rendered that shows the Veteran received treatment twice in May 1960 following the in-service incident and that he had an in-service lumbar spine fracture. Weighing in favor of the Veteran’s claim is a positive medical nexus opinion stating that given the compression fractures, it is at least as likely as not that the Veteran’s back pain has been a continuation of back pain from his military service. See February 2020 VA Examination. The Board affords this opinion high probative value as the examiner thoroughly reviewed the Veteran’s records. The Board also acknowledges the Veteran’s lay testimony in support of his claim for a lumbar spine disability in finding that the objective medical evidence of record corroborates that since service he has suffered from recurrent back pain. See April 2019 Board hearing testimony. Here, the Board notes that a layperson is competent to report the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The record demonstrates that the Veteran has consistently and competently reported symptoms of back pain since service. The weight of the probative evidence demonstrates that the nexus element to service connection is met, and a grant of service connection is warranted for the claimed lumbar spine disability. The Veteran’s claim for entitlement to service connection for a lumbar spine disability is granted. REASONS FOR REMAND 1. Entitlement to service connection for a right lower extremity condition, claimed as secondary to a lumbar spine disability is remanded. 2. Entitlement to service connection for a left lower extremity condition, claimed as secondary to a lumbar spine disability is remanded. The Veteran contends he has a lower left and lower right extremity disability secondary to his lumbar spine disability. In characterizing the issues on appeal, the Board recognizes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As the medical evidence of record indicates that in the past, the Veteran has received multiple diagnoses of radiculopathy and neuropathy, the issue of entitlement to service connection has been expanded as noted above, consistent with Clemons. In July 2019, the Board remanded these issues in order to obtain a VA opinion. In February 2020, the VA examiner opined that based on the results of a private EMG performed by the Veteran’s private physician, it is less likely than not that the Veteran has symptoms of radiculopathy and it is most likely that his symptoms are secondary to a neuropathy. However, the examiner did not offer an etiology for the neuropathy diagnosis and whether it is secondary to the Veteran’s lumbar spine disability. Therefore, the Board finds this opinion is inadequate for adjudicatory purposes. Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). A remand for a clarification opinion is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the February 2020 VA examiner, or another examiner if the February 2020 examiner is unavailable. The examiner is asked to opine: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s radiculopathy or neuropathy of the left and right lower extremities were caused or aggravated by the Veteran’s service-connected lumbar spine disability? (b.) If the examiner finds that the Veteran does not suffer from radicular or neuropathic pain of the lower extremities, reconcile the findings with that of the April 2019 private treatment records showing numbness and paresthesias in his lower legs and feet, as well as mild to moderate peripheral neuropathy. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.