Citation Nr: 21063416 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-27 686 DATE: October 14, 2021 ORDER Service connection for a low back disability, diagnosed as degenerative disc disease with spondylosis and spinal stenosis, is granted. Service connection for right lower extremity radiculopathy is granted. Service connection for left lower extremity radiculopathy is granted. Service connection for chronic kidney disease is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's lumbar spine degenerative disc disease with spondylosis and spinal stenosis had its onset in service. 2. The Veteran's right lower extremity radiculopathy is proximately due to his service-connected lumbar spine degenerative disc disease with spondylosis and spinal stenosis. 3. The Veteran's left lower extremity radiculopathy is proximately due to his service-connected lumbar spine degenerative disc disease with spondylosis and spinal stenosis. 4. The Veteran's chronic kidney disease is proximately due to his service-connected type 2 diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar spine degenerative disc disease with spondylosis and spinal stenosis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for chronic kidney disease have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1968 to November 1971, including service in the Republic of Vietnam from August 1970 to May 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a July 2021 hearing. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for a low back disability. The Veteran's service treatment records show that in August 1971 he complained of paravertebral musculature pain. Physical examination revealed pain localized to bilateral musculature around T-9 with muscle spasm and tenderness; the impression was muscle tightness due to increased activity. Post-service treatment records show a diagnosis of lumbar spine degenerative disc disease with spondylosis and spinal stenosis. See, e.g., June 2009 private treatment records. The Board acknowledges the negative nexus opinion provided on February 2014 VA examination. Notably, the examiner indicated that the Veteran's injury in service was to his thoracic spine, and his current diagnosis was related to his lumbar spine. However, the Veteran is competent to report recurrent lumbar spine pain, and the Board does not question the credibility of the Veteran's reports of recurrent lumbar spine pain. Accordingly, the Board finds the February 2014 VA examination inadequate. The Veteran testified that his low back pain started during service due to his duties during service which involved lifting, bending, twisting, and carrying heavy loads and equipment. See July 2021 virtual hearing. As to the credibility of the Veteran's statements, the Veteran denied seeking treatment during service, indicating he self-medicated during service and that he waited to seek treatment until he was able to secure a job that had medical benefits. Id.; see also June 2013 claim. The Board finds the Veteran's reports of low back pain during and since service to be credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board observes that the Veteran is also competent to report low back pain during and since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has also submitted a July 2021 statement from his brother indicating that the Veteran reported back pain that started during service due to heavy lifting, and that the pain has gotten worse over the years. The Veteran has also submitted a July 2021 statement from his spouse stating that she met the Veteran very close to his separation from service, that she remembers him complaining of back pain and that they were caused by heavy lifting in the military, and that his pain has worsened throughout the duration of the marriage. Based on the competent and probative lay and medical evidence of record, the Board concludes that the Veteran's lumbar spine degenerative disc disease with spondylosis and spinal stenosis became manifest while the Veteran was on active duty and thus were incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Thus, all three elements necessary to establish service connection have been met and service connection for lumbar spine degenerative disc disease with spondylosis and spinal stenosis is warranted. 2. Entitlement to service connection for right lower extremity radiculopathy. 3. Entitlement to service connection for left lower extremity radiculopathy. The Veteran has a current diagnosis of right and left lower extremity radiculopathy of the sciatic nerve. See February 2014 VA back conditions examination; see also June 2009 private treatment record. Based on the above decision, service connection is also in effect for service connection for lumbar spine lumbar spine degenerative disc disease with spondylosis and spinal stenosis. The critical question in this case is the etiology of the diagnosed right and left lower extremity radiculopathy. In this case, the Veteran's primary theory of entitlement is that his right and left lower extremity radiculopathy is secondary to his service-connected lumbar spine degenerative disc disease with spondylosis and spinal stenosis. The evidence of record includes a diagnosis of lumbar radiculopathy. See February 2014 VA back conditions examination. Thereafter, after a review of the evidence of record, the Board finds that the preponderance of the evidence supports awarding service connection for right and left lower extremity radiculopathy as secondary to the service-connected lumbar spine degenerative disc disease with spondylosis and spinal stenosis. See 38 C.F.R. § 3.310. 4. Entitlement to service connection for kidney disease. The Veteran has a current diagnosis of chronic kidney disease. See, e.g., December 2014 private treatment record. The critical question in this case is the etiology of the diagnosed chronic kidney disease. In this case, the Veteran's primary theory of entitlement is that his chronic kidney disease is secondary to his service-connected type 2 diabetes mellitus. The evidence of record includes a July 2014 private treatment record that opined the etiology of his chronic kidney disease is likely a combination of diabetic nephropathy and from chronic periodic post-obstruction from his urethral stricture. It was noted that all renal work until 2013 was essentially unremarkable, which leaves the chronic kidney disease as likely being secondary to diabetes, which is the most common cause of chronic kidney disease in the United States. There is no medical opinion to the contrary. After a review of the evidence of record, the Board finds that the evidence supports awarding service connection for chronic kidney disease as being of service origin as secondary to the service-connected type 2 diabetes mellitus. See 38 C.F.R. § 3.310. As such, service connection for chronic kidney disease is warranted. REASONS FOR REMAND 5. Entitlement to service connection for bilateral hearing loss is remanded. At the outset, the Board notes that the record reflects bilateral hearing loss for VA purposes, satisfying the first element of service connection. 38 C.F.R. § 3.385. See February 2014 VA examination. The RO has also conceded exposure to acoustic trauma consistent with his service. See January 2014 request for VA examination. On February 2014 VA audiological examination, the examiner noted normal enlistment and separation audiogram that showed no significant threshold shift during service. The examiner opined that it was not at least as likely as not the Veteran's bilateral hearing loss was caused by or a result of an event in military service. Inasmuch as the February 2014 VA examiner relied on the Veteran's normal hearing at separation to provide a negative etiological opinion, the Board finds the examination and opinion provided to be inadequate. The Board notes that even if disabling hearing loss is not demonstrated at separation, a veteran may still establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). In addition, the examiner did not consider delayed-onset hearing loss. Therefore, the Board finds that a remand is necessary to afford the Veteran a new VA examination. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service bilateral hearing loss, to include the onset of the condition. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). Whether an in-person examination is necessary should be determined by the examiner. After review of the Veteran's claims file, the examiner should then opine as to whether it is at least as likely as not: (a) The Veteran's bilateral hearing loss had its onset in service or within one year of his discharge from active duty, or is otherwise related to service, to include as a result of conceded noise exposure during service. In addressing this question, the examiner must accept as true that the Veteran was exposed to noise exposure in conjunction with his service duties, and please do not rely solely on the fact that the Veteran had "normal" hearing at separation from service to support the opinion. It is not sufficient to base an opinion on a mere lack of documentation of complaints in service or post-service treatment records. The examiner must also address whether it is at least as likely as not that the Veteran has delayed-onset hearing loss. (b) The Veteran's bilateral hearing loss is proximately due to his service-connected type II diabetes mellitus; or, (c) The Veteran's bilateral hearing loss has been aggravated by his service-connected type II diabetes mellitus. (Continued on the next page) A complete rationale for all opinions must be provided. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.