Citation Nr: 21061507 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 18-26 984 DATE: October 4, 2021 ORDER Entitlement to service connection for lumbar degenerative disc disease is granted. Entitlement to service connection for left lower extremity radiculopathy is granted. Entitlement to service connection for right lower extremity radiculopathy is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his lumbar strain is at least as likely as not related to back pain complaints or injury during service. 2. The Veteran's left lower extremity radiculopathy is proximately due to his service-connected lumbar degenerative disc disease. 3. The Veteran's right lower extremity radiculopathy is proximately due to his service-connected lumbar degenerative disc disease. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar degenerative disc disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left lower extremity radiculopathy as secondary to lumbar degenerative disc disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for right lower extremity radiculopathy as secondary to lumbar degenerative disc disease 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 from February 1999 to February 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2016 and January 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in October 2020. A transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900. 38 U.S.C. § 7107 (a)(2). Service Connection 1. Entitlement to service connection for lumbar degenerative disc disease 2. Entitlement to service connection for left lower extremity radiculopathy 3. Entitlement to service connection for right lower extremity radiculopathy The Veteran seeks service connection for a low back disability and associated lower extremity radiculopathy. He asserts that his current low back disability is related to treatment for mechanical low back pain that he received during active 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 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). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). During service, the Veteran was seen for occasional complaints of back pain. In May 1995 the Veteran sought treatment for back pain. He reported that his back had started getting better, but he twisted at the waist and it began hurting again. In May 1997, the Veteran sought treatment for mechanical back pain. The Veteran was instructed in exercises in proper body mechanics. In May 1999, the Veteran appeared at the emergency room for low back pain. No history of trauma was indicated. In May 2000, the Veteran appeared for back problems. He reported pain after lifting a drip pain overhead. He reported seeing improvement until a friend punched him in his back, which aggravated symptoms. Post-service private treatment records show the Veteran reported ongoing low back problems after service. In December 2007, the Veteran presented for an evaluation of low back and right shoulder pain. He stated that he had ongoing back problems since 2001. Physical examination revealed paralumbar tenderness bilaterally. In February 2014, the Veteran appeared for low back and leg pain. Imaging in March 2014 showed L5-S1 disc degeneration. The Veteran was afforded a VA examination in April 2015. The examiner opined the Veteran's back disability is less likely related to service, to include treatment for back pain in May 1999 and May 2000. The examiner explained that there were no other entries or references to low back pain during the remaining 3 years of military service. The examiner indicated the Veteran had no documentation of lower extremity symptoms until the last 2 years. As such, the examiner found the 12-year gap in documented symptoms were insurmountable in this case in terms of causation and relatedness to military service. In an April 2016 addendum opinion, a VA examiner opined the VES examiner was correct. He explained that there was no persistence of back problems demonstrated during the Veteran's military service, just two somewhat prolonged episodes of back pain that required brief periods of prescription usage and physical therapy. The Veteran's forms from his exit exam from the Navy and enlistment to the Reserves plainly states that there were no back problems at that time, and the last incident he had was nearly 3 years prior. The examiner noted that the Veteran stated he did not complain further during service due to fear of being 'med boarded,' and then fear of not being allowed in the Reserves, but concluded that there was no evidence to support this statement. The examiner opined that it is more likely than not that the 12 years between the Veteran's exit and the time that his submitted records indicate back problems contained events that caused his current disabilities. The Veteran submitted a letter from Dr. Kuklo, his treating provider, dated November 2016. He indicated the Veteran had been a patient of his for 2 to 3 years. He was originally seen in the office on or about early 2014. Dr. Kuklo opined that by history, his disc herniation and spine condition were linked to his initial injury in 2000, where he described lifting and holding a 230 lb metal beam overhead for work. He explained that the Veteran had originally described this to him on his initial visit. Thus, he concluded it is at least as likely as not that the Veteran's back condition is due to his time in service. In a March 2021 addendum opinion, a VA examiner opined the claimed condition was less likely than not related to service. The examiner explained that in 1999 Veteran was assigned to the mess deck as an engineer to help with general upkeep of the equipment of the facility. He was asked to hold a 100-drip pain overhead and had had back pain the next day. Service treatment records showed low back pain in 1995 for 2 weeks, in 1997 for which he did home physical therapy, in 1999 for one day, and in 1999 after an injury where it was reported the Veteran had low back pain for 2 weeks and had improvement. The examiner found nothing in the medical reports to show injury or chronic low back pain that was debilitating. She indicated that during service, the Veteran's low back condition was acute only. There is no evidence of chronicity of care and symptoms are subjective only. She concluded that a nexus has not been established. The Veteran submitted a private clinical evaluation by Dr. Miller dated July 2021 in support of his claim. The clinician concluded the Veteran was reliable, and that he provided forthright and honest responses about his medical history. Dr. Miller opined that the Veteran's current thoracolumbar condition is the direct result of injuries he sustained while on active duty. He explained that a mechanical spine syndrome is an umbrella diagnosis that covers a multitude of abnormal pathology, which can be caused by a number of different etiologies from an acute traumatic event or secondary to cumulative trauma. The literature points out that 70 percent of low back pain is due to lumbar strain or sprain. In this case, the Veteran's injury occurred in May 2000 when for an hour he was standing on a table balancing and holding a drip pain. After this injury, the Veteran reported experiencing intermittent low back pain that consisted of an aching sensation associated with stiffness. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. In weighing the conflicting medical nexus opinions, the Board finds the November 2016 and July 2021 private nexus opinions more persuasive than the VA nexus opinions. Both private opinions rely heavily on the Veteran's lay report of back pain symptoms arising since back injuries that occurred during service. The Board has herein found the Veteran's assertion of such events to be generally credible. Thus, the Board can rely on these two opinions to support service connection. The unfavorable April 2015, April 2016, and March 2021 VA opinions were considered, however, the primary rationale was a lack of evidence of chronicity. There appears to have been little consideration of the Veteran's report of recurrent back symptoms since service, which the Board finds reasonably credible. Hence, these opinions are of little probative value. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). While the Veteran is not competent to provide a diagnosis in this case or determine that his symptoms were manifestations of his current disability, he is competent to report having experienced back pain since service and his lay assertions appear to be reasonably credible. In this regard, the December 2007 private clinic notes constitute persuasive evidence generally confirming the Veteran's lay reports of recurrent back pain that started during active service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current lumbar degenerative disc disease arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for lumbar strain is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As the relevant treatment records in the claim file indicate the bilateral lower extremity radiculopathy is associated with the Veteran's current back disability, service connection for right and left lower extremity radiculopathy secondary to the service-connected low back disability is also warranted. 38 U.S.C. § 5107 (b); 3.303(d), 3.310; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, 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.