Citation Nr: 21000319 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-11 833 DATE: January 5, 2021 ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine (low back disability) is granted. Entitlement to service connection for bilateral lumbar radiculopathy, secondary to service-connected low back disability on a causation basis, is granted. Entitlement to service connection for bilateral leg disability other than lumbar radiculopathy is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's low back disability began during active service. 2. The Veteran's bilateral lumbar radiculopathy is a result of his low back disability. 3. The Veteran does not have a current bilateral leg diagnosis, other than bilateral lumbar radiculopathy, and he does not have leg symptoms other than those from lumbar radiculopathy resulting in functional impairment. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for low back disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral lumbar radiculopathy, secondary to low back disability, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for bilateral leg condition are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to July 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied service connection for degenerative changes of the lumbar spine and peripheral neuropathy of the bilateral lower extremities. In October 2012 the Veteran filed a Notice of Disagreement (NOD) as to his low back disability, peripheral neuropathy of the bilateral lower extremities, and bilateral leg pain. In February 2014 the RO issued a statement of the case (SOC) and in April 2014 the Veteran timely filed a substantive appeal (via VA Form 9). In August 2018 the Board remanded the Veteran’s claim for further evidentiary development, specifically, to schedule the Veteran for a VA examination to determine if the Veteran’s low back disability, bilateral lumbar radiculopathy, and bilateral leg condition are related to service. For the reasons stated in the discussion below, the Veteran was provided a VA examination and the RO substantially complied with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) 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. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a),(b). 1. Low back disability At a September 2019 VA examination the Veteran was diagnosed with degenerative disc disease of the spine. Also, a November 1998 private treatment note indicates that the Veteran had undergone surgery on his lower back prior to that date. Thus, a current low back disability has been demonstrated. In an October 2012 letter, the Veteran contends that he hurt his back unloading a truck. The Veteran stated that after catching a sack of potatoes he felt a sharp pain in his back which continued to hurt following bed rest. The Veteran did not report this incident because he feared that it would send him home and he did not want to appear weak to his fellow soldiers. The Veteran’s military occupational specialty (MOS) was a vehicle repairman, as noted on his DD Form 214. This MOS is associated with physical stress. Therefore, the Veteran’s reported event is consistent with the places, types and circumstances of the Veteran's service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Thus, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran’s current low back disability and an in-service back injury. In an October 2012 letter, the Veteran contends that his low back disability is the result of an injury in service and that his symptoms have persisted since that time. The Veteran is competent to report continuous back symptoms in the years since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Additionally, an October 2012 letter from the Veteran’s sister stated that the Veteran reported his injury to his family while in service and that he suffered back pain since that time. There is no evidence that explicitly contradicts the Veteran's reports and they are generally consistent with the evidence of record and the circumstances of his service. Therefore, the Board finds that the reports of continuous back symptoms in the years since service are credible. A September 2019 VA examiner opined that the Veteran’s low back disability was less likely than not related to an in-service injury or disease. The VA examiner explained that the Veteran’s STRs are silent for any back injury, and his June 1970 separation examination is silent as well. The VA examiner explained that there are no records of back problems for many years following service. The VA examiner concluded that the Veteran’s low back disability is more likely the result of the manual labor he performed after service. The September 2019 opinion is of little, if any, probative value because it is essentially based on the absence of evidence of ongoing treatment for back problems following the Veteran's time on active duty and the absence of any clinical evidence of back abnormalities during his separation examination. The opinion does not take into account the competent and credible lay reports of continuous back symptoms in the years since service (to include in the years before the Veteran's post-service back surgery). Buchanan, 451 F.3d 1331 at 1336 (VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Moreover, the September 2019 VA opinion actually supports a nexus between the Veteran's low back disability and service. The VA examiner reached a negative opinion based on the mistaken fact that there were no reports of low back disability in the period between the Veteran’s service and 1998, when the Veteran sought medical treatment from a private physician, and emphasized that the first X-rays to show disc disease were in September 2019, many years after service. The opinion implies that, had there been symptoms in the interim, then the examiner would have reached the opposite conclusion that the Veteran's low back disability was related to the Veteran's service. As indicated by a November 1998 private treatment note, the Veteran he did have surgery on his lower back prior to that date. Therefore, the September 2019 VA opinion supports the finding that the evidence of record warrants entitlement to service connection for low back disability. In sum, the evidence reflects that the Veteran experienced low back pain in service and that there have been continuous symptoms in the years since service, ultimately resulting in diagnosis of a low back disability. The only medical opinion on this question found that there was an absence of evidence of low back symptoms until many years post service which indicated a lack of relationship between the current low back disability and service. Given that there were in fact treatment records indicating evidence of low back symptoms during this time period, the September 2019 VA opinion can be read as supporting a relationship between the current low back disability and service. While the Board could again remand the claim for yet another medical opinion, such action could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The evidence is thus at least evenly balanced as to whether the Veteran's diagnosed low back disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for low back disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Bilateral lumbar radiculopathy A September 2019 VA examiner diagnosed the Veteran with bilateral lumbar radiculopathy and is now in receipt of service connection for low back disability. The remaining question is whether the Veteran’s service-connected low back disability caused his bilateral lumbar radiculopathy. The September 2019 VA examiner wrote that the Veteran has symptoms compatible with bilateral lumbar radiculopathy secondary to his low back disability. There is no opinion to the contrary. Accordingly, service connection for bilateral lumbar radiculopathy, secondary to service-connected low back disability, on a causation basis, is warranted. 3. Bilateral leg disability other than lumbar radiculopathy The Veteran was awarded service connection for bilateral lumbar radiculopathy related to his low back disability. To the extent that his claim for service connection for bilateral leg condition is separate from his now service-connected bilateral lumbar radiculopathy, the Board will address them in turn. The Board notes that a diagnosis is not required to meet the current disability requirement and pain alone can constitute disability if it causes impairment in earning capacity. Saunders, 886 F.3d at 1364-65. The Veteran generally asserts that service connection is warranted for bilateral leg condition. He has not specified a particular disorder. The Veteran’s STRs indicate that the Veteran complained of leg cramps. The examining physician noted that the cramps in his legs were related to exercise. The Veteran has contended generally that he is entitled to service connection for a bilateral leg condition, but has not made any more specific assertions as to the nature of the claimed disability or whether any symptoms cause functional impairment. VA treatment records do not show any complaints of or treatment for a bilateral leg condition other than the radiculopathy for which service connection has been granted. Moreover, the evidence does not reflect any functional impairment other than from the bilateral lumbar radiculopathy for which service connection has been granted. Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) (a diagnosis is not required to meet the current disability requirement and pain alone can constitute disability if it causes impairment in earning capacity). Given the lack of evidence of disability, to include impairment in earning capacity, of the legs other than lumbar radiculopathy for which service connection has been granted, the preponderance of the evidence is against the claim of entitlement to service connection for a bilateral leg condition. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. In this regard. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.