Citation Nr: 21001837 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-62 288A DATE: January 12, 2021 ORDER Entitlement to service connection for residuals of fractured lumbar spine is granted. Entitlement to service connection for left leg radiculopathy is granted. Entitlement to service connection a right hip disorder is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine disability is etiologically related to service. 2. The Veteran’s left leg radiculopathy is etiologically related to service. 3. The weight of evidence is against a finding that the Veteran has had a right hip disorder at any time during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a lumbar spine fracture have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for left leg radiculopathy have been met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a); 3.310. 3. The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from November 1972 to September 1976. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office in Milwaukee, Wisconsin. In August 2020 the Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge. This appeal has been advanced on the docket. 38 U.S.C.§ 7107 (2012); 38 C.F.R. § 20.900(c) (2018). Service Connection 1. Entitlement to service connection for residuals of fractured lumbar spine is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge 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) (2017). In addition, service connection for certain chronic diseases, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran alleged in the December 2017 Form 9, that his lumbar spine disorder began during service and has existed since that time. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). In August 2013 private treatment records, the Veteran was diagnosed with thoracic or lumbosacral neuritis or radiculitis. In a November 2014 disability benefits questionnaire completed by the Veteran’s private treating physician, the Veteran was diagnosed with central stenosis, intervertebral disc syndrome, radiculopathy, and vertebral fracture. In January 2020 private treatment records, the Veteran was diagnosed with spondylosis L3-L4 and L4-L5. Second, the Board finds that there was an in-service injury. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). April 1973 service treatment records (STRs) documented the Veteran’s first back injury. The records noted that the Veteran was unable to ambulate following this incident and that he continued to have severe back pain. The Veteran exhibited a massive right sided back spasm and marked lumbosacral tenderness. He was treated with bedrest, bed boards, hot packs, and medication. The Veteran was diagnosed with severe lumbar spine sprain. July 1973 STRs continued to note low back pain while October 1973 STRs recorded worsening back pain and treatment with bedrest. October 1973 STRs also noted a motor vehicle accident (MVA) that exacerbated the Veteran’s back pain. November 1973 STRs show that the Veteran complained of acute exacerbation with lumbosacral pain and left sided tenderness. The examiner determined that the Veteran had chronic lumbosacral strain. The Veteran’s discharge examination and report of medical history are not of record. Third, the Board finds that the evidence of record does support a finding that the lumbar spine disorder is related to active service. The Veteran submitted a DBQ completed by his private treating physician in December 2014. The private physician did not provide a nexus statement or rationale regarding the etiology of the Veteran’s lumbar spine condition. Notably, the Veteran has asserted that he has had back symptoms since the incidents; he was a medic and self-treated. Additionally, he continued to have pain after service, but self-treated and had a sedentary job. The Board finds these statements competent and credible as they are supported by the other evidence of record, to include the DD-214 that noted the Veteran’s military occupational specialty. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The Veteran was provided with a VA examination to evaluate his spine condition in September 2015 with an addendum opinion provided in October 2015. In the October 2015 addendum, the examiner determined that the Veteran’s degenerative disc disease and degenerative joint disease of the lumbar spine was less likely than not related to his in-service back injury because the Veteran was able to continue his service following the injury. The examiner also noted that the Veteran did not file the claim for a back condition until 40 years after the injury and there was no evidence to document ongoing back pain following service. The examiner noted that the Veteran’s private physician provided a DBQ and medical records beginning in 2013 but found that previous medical records would have to be associated with the Veteran’s claims file in order to determine the onset of back pain. The Board finds this opinion not probative as it is based in part on a finding that the Veteran’s reports of continuing symptoms were not credible – the Board has found those statements credible, as noted above. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (providing that VA examiner's opinion inadequate in that it relied exclusively on the absence of contemporaneous medical evidence such as actual treatment records); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (noting that a medical opinion based upon an inaccurate factual premise has no probative value). In January 2019 the Veteran submitted an opinion from a private physician. The physician determined that the Veteran’s back pain and all residuals of the in-service events were at least as likely as not caused by his in-service back injuries. The physician reviewed the Veteran’s records and determined, to a strong degree or medical certainty, that the Veteran’s transverse fracture in-service resulted in his current back disability when considering the severity of the fall at the time, the age of the findings at the time of the Veteran’s 2013 MRI, and the indications of chronicity of findings during surgery. These indications included the appearance of the healed areas at the fracture, the degree of bony and cartilage hypertrophy and overgrowth, the degree of localized spinal stenosis present at the surgery, and the appropriateness of the location of the L1-L2 and L4-S1 pathology to causation by the original in-service injuries. The physician provided a thorough explanation that laid out the origins of each of the Veteran’s spine conditions as they related to the Veteran’s fall in service as well as the subsequent MVA. The physician also emphasized that many of the Veteran’s current back disorders were trauma-induced and that outside, of service, the Veteran had not experienced any significant spinal trauma. The physician noted that single events of forceful impact, such as the Veteran’s in-service transverse fracture, usually cause significant to severe disc damage and degeneration and that a second such event occurring prior to the healing of the initial injury, such as the MVA, causes changes in the spinal structure, nerve compression, and pain. The physician concluded that causal nexus was well-defined by medical and scientific studies. The Board finds this opinion highly probative as it was provided upon review of the relevant facts to include lay statements of symptomatology that the Board found probative and is supported by explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Accordingly, service connection is granted. 2. Entitlement to service connection for left leg numbness, to include as secondary to residuals of fractured lumbar spine is granted. The Veteran alleged in the December 2017 Form 9, that his left leg numbness began during service and has existed since that time or that it was caused by his no service-connected lumbar spine disability. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran was diagnosed with radiculopathy by his private physician in the November 2014 DBQ. This diagnosis was confirmed in the September 2015 VA examination. Second, the Board finds that there was an in-service injury. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). As previously noted, several STRs from April to November 1973 documented two back injuries that the Veteran experienced in service. Third, the Board finds that the evidence of record does support a finding that the radiculopathy is related to active service. The Veteran’s private physician who completed the November 2014 DBQ and the examiner from the October 2015 VA opinion did not address the possible etiology of the Veteran’s diagnosed left leg radiculopathy. A private physician addressed the etiology of the Veteran’s left leg radiculopathy in a January 2019 opinion. The physician determined that the Veteran’s radiculopathy was caused by his two in-service back injuries. The physician noted that the Veteran had a positive straight leg raising test result in the April and October 1973 STRs following his back injuries. The physician stated that based on the positive straight leg raising test results and the severity of the injury in service, that it was at least as likely as not that the Veteran’s radiculopathy is etiologically related to the in-service fall that resulted in a transverse fracture. The physician stated that the location of the fracture, which was likely to give rise to root compression secondarily, and the findings at the 2013 surgery showing a substantial level of bone injury and interspinal instability that likely would have given rise to radiculopathy at those levels indicated nexus. He determined that the in-service injuries resulted in trauma that that led to a cellular response that caused enlargement of the spinal structures which then caused nerve compression and fibrosis of the nerve roots. As such, the physician determined that the Veteran’s radiculopathy was directly caused by his in-service injuries. The Board finds this opinion highly probative as it is provided upon review of the relevant facts to include lay statements of symptomatology that the Board found probative and is supported by explanation. See Nieves-Rodriguez, 22 Vet. App. at 302-04; Stefl, 21 Vet. App. at 124. As there is an adequate medical opinion of record finding for nexus between the Veteran’s left leg radiculopathy and his in-service injuries, the Board determines that service connection is warranted. 3. Entitlement to service connection for residuals of right hip injury, to include as secondary to residuals of fractured lumbar spine is denied. The Veteran contended in a December 2014 claim that he is entitled to service connection for the residuals of a right hip injury. At the August 2020 hearing, the Veteran asserted that his right hip pain was due to his altered gait which stemmed from compensating for his spine disability and left leg numbness. The threshold question in any claim seeking service connection is whether the veteran, in fact, has the disability for which service connection is sought. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a current disability, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Pain alone, however, can serve as a disability for VA compensation purposes if the pain results in functional impairment that affects earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Here, there is no evidence of a right hip diagnosis or right hip pain that results in functional impairment that affects earning capacity. There are no medical opinions demonstrating that a right hip diagnosis. Further, all post-service treatment records do not show symptoms sufficient enough to produce functional impairment of earning capacity. For example, a September 2015 VA examination noted that hip flexion was 5/5 bilaterally. A May 2017 private treatment record noted that that the hip range of motion was full and painless bilaterally. The Board notes that the Veteran is competent to testify about his symptoms relating to his claimed right hip disability. However, the Veteran has not provided testimony of right hip pain that would cause functional impairment that affects earning capacity. There are simply no such lay statements. The Board notes that the Veteran has not been provided a VA examination for his claim of service connection for a right hip disability. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). However, the Board concludes that an examination and medical opinion are not needed to fairly decide this claim, as the record does not contain competent evidence of a disability or symptoms that rise to the appropriate level. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a right hip disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ashley Ki, 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.