Citation Nr: A21016971 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 210923-187371 DATE: October 20, 2021 ORDER Entitlement to service connection for a low back disorder is granted. Entitlement to service connection for a right lower extremity disorder, claimed as right leg pain, is granted. Entitlement to service connection for a left lower extremity disorder, claimed as left leg pain, is denied. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's current low back disorder began during or is otherwise related to active service. 2. Medical evidence shows a right lower extremity disorder proximately due to or the result of the Veteran's service-connected low back disorder. 3. The preponderance of the evidence is against finding that the Veteran has a current left lower extremity disorder. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a low back disorder have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for secondary service connection for a right lower extremity disorder have been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.310. 3. The criteria for service connection for a left lower extremity disorder have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1955 to April 1958. The rating decision on appeal was issued in August 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the September 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Service Connection In his January 2020 claim, the Veteran asserted that his chronic low back pain was due to repetitive injury from moving and handling munitions, and that the pain in both legs is secondary to the back. In August 2021, VA denied service connection for chronic low back pain (strain) and for pain in the right and left legs (claimed as pain into both legs from the back). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 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). Certain chronic diseases, to include arthritis and peripheral nerve conditions, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be granted on a secondary basis for a disability that is proximately due to a service-connected condition. 38 C.F.R. § 3.310(a). Service connection is also possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, VA amended 38 C.F.R. § 3.310 to incorporate the decision in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability. 38 C.F.R. § 3.310(b). In an August 2020 statement, the Veteran reported that while he was in the Army, he was an "ammo humper" and handled items of considerable weight and size. He reported that he hurt his back and was seen in sick call where he was given a chit for light duty. His non-commissioned officer (NCO) made him sweep which also hurt his back and he received harassment for being on light duty. He went back to regular duty and only went to sick call when his back pain got really bad. He stated that the pain was in his lower back and sometimes in his legs. He described moving munitions all over Germany and discussed his duties in detail, to include loading and unloading boxes of grenades and shells from rail cars and trucks. After he got out of service, he worked in molding windows and doors for 15 years which was light weight work compared to military service. He stated that any bending, stooping, or lifting light weight bothered his back. His last 40 years of working was as a salesman. A July 2021 Report of General Information documents the Veteran's report that he injured his back in the spring of 1957 while traveling from ammo dump to ammo dump. Despite extensive efforts to obtain the Veteran's service treatment records, they are fire-related and unavailable for review. Notwithstanding, the Veteran is competent to report that he engaged in repetitive heavy lifting during service and that he had back pain beginning in service and continuing. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a lay person is competent to report on that of which he has personal knowledge). His DD Form 214 shows he was an ammunition helper and assigned to an ordnance company (ammo). His reports of heavy lifting are consistent with the circumstances of his service and thus, the Board finds evidence of an in-service event or injury. In support of his claim, the Veteran submitted a December 2019 statement from Dr. A.V.M. who stated that he reviewed the medical records from his office and what notes he had from the Veteran's orthopedic surgeon. He also reviewed the Veteran's detailing of the circumstances and events of military service, to include his reports of moving tens of thousands of pounds of ammunition. He stated that the Veteran has been his patient for over 20 years. Diagnosis was chronic lumbar back pain and right lumbar radiculopathy. He was familiar with the Veteran's history and noted no other known risk factors that may have precipitated his current condition. He opined that it was more likely than not that the Veteran's condition was a direct result of his military service. In February 2021, the Veteran underwent a VA back examination. He reported that he developed back problems since he was in service. Lumbar spine x-rays showed mild diffuse degenerative disc changes; mild thoracolumbar levoscoliosis; and the facets appeared degenerative throughout. Diagnoses were listed as intervertebral disc syndrome; right lower extremity femoral peripheral neuropathy; lumbar spine degenerative disc disease and facet arthropathy; and thoracolumbar scoliosis. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In making this determination, the examiner acknowledged the private opinion but stated there was insufficient documented evidence to support this statement. Without any service medical records to review, in addition to having no evidence after service other than relatively recent records, he was unable to associate the current back condition to service. In February 2021, the Veteran also underwent a VA peripheral nerves examination. He reported intermittent pain shooting to the right thigh for a long time. The examiner stated that the Veteran's right leg pain with normal motor and sensory findings at this time, was clinically consistent with right sensory femoral peripheral neuropathy. Diagnosis was right lower extremity femoral peripheral neuropathy and the examiner stated that it was at least as likely as not associated to his back and was clinically consistent with the private assessment of chronic lumbar pain with right lumbar radiculopathy. As concerns the left leg, the examiner stated the Veteran reported no left leg pain and the examination was currently normal. There was no diagnosis because there were no findings, signs, or symptoms to support a diagnosis. In August 2021, additional opinion was obtained from another VA examiner based on records review. She noted that available medical records show earliest evaluation for low back pain was in 2019, over 60 years after service. Medical records also indicate that the Veteran worked in manual labor in molding for 15 years after service. Medical literature reveals that advancing age and physically demanding occupations can lead to degenerative changes in the spine. Therefore, it was her opinion that due to the first objective evaluation for low back pain being almost 60 years after service and the Veteran having other risk factors for developing degenerative disc disease, the claimed low back condition was less likely than not incurred in or the result of military service. Entitlement to service connection for a low back disorder As discussed above, evidence of record shows a currently diagnosed low back disorder. The question is whether this is related to active service or events therein, to include heavy lifting. The record contains evidence both for and against the claim. That is, the Veteran's treating physician provided a positive nexus opinion, and the VA examiners did not. The private opinion is based in large part on the Veteran's reported history of repetitive heavy lifting, which appears consistent with evidence of record; however, the physician did not note other risk factors such as age or occupation. The VA opinions are largely based on the absence of documented treatment in service and the length of time before objective evaluation. While the most recent opinion notes post-service risk factors, it does not appear to adequately consider his reports of back pain beginning during service and continuing (i.e., "since he was in service"). On review, the Board finds the evidence is at least in equipoise as to whether the Veteran's current low back disorder began during or is otherwise related to service. Resolving reasonable doubt in his favor, service connection is established. See 38 C.F.R. § 3.102. Entitlement to service connection for a right lower extremity disorder, claimed as right leg pain Medical evidence of record shows diagnoses pertaining to the right lower extremity specifically, lumbar radiculopathy and femoral peripheral neuropathy. Both the private opinion and VA opinion attribute these to the Veteran's low back disorder. As service connection for a low back disorder is established herein, secondary service connection is warranted for the right lower extremity disorder. 38 C.F.R. § 3.310. Entitlement to service connection for a left lower extremity disorder, claimed as left leg pain Service treatment records are unavailable for review, and there is no evidence of peripheral neuropathy of the left lower extremity manifested to a compensable degree within one year following discharge from active service. As noted, the Veteran asserts he has left leg pain related to his low back disorder. Private medical records include a diagnosis of peripheral neuropathy treated with gabapentin. These do not, however, specifically identify the side involved and the December 2019 statement submitted by the same physician does not reference any findings or diagnosis pertaining to the left lower extremity. Rather, it notes only right lumbar radiculopathy. Further, the subsequent VA peripheral nerves examination noted no complaints, findings, or diagnosis related to the left lower extremity. The Board acknowledges that pain without a diagnosis can constitute a current disability if the pain results in functional impairment in earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Here, neither the Veteran nor the record indicates any pain or neurological findings related to the left lower extremity producing functional impairment affecting his earning capacity. (Continued on the next page) On review, the preponderance of the evidence is against finding a current left lower extremity disorder. Without a current disability, service connection may not be established. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The doctrine of reasonable doubt is not for application and the claim is denied. See 38 C.F.R. § 3.102. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Carsten, 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.