Citation Nr: 21067310 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-59 146 DATE: November 3, 2021 ORDER Entitlement to service connection for thoracolumbar spine degenerative disc disease is granted. Entitlement to service connection for bilateral lower extremity radiculopathy as secondary to service-connected thoracolumbar spine degenerative disc disease is granted. FINDINGS OF FACT 1. The most probative evidence of record establishes the Veteran's thoracolumbar spine degenerative disc disease manifested during active military service. 2. The most probative evidence of record establishes the Veteran's bilateral lower extremity radiculopathy is proximately due to service-connected thoracolumbar spine degenerative disc disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for thoracolumbar spine degenerative disc disease have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for bilateral lower extremity radiculopathy as secondary to service-connected thoracolumbar spine degenerative disc disease have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. INTRODUCTION The Veteran served honorably on active duty, including in combat, in the United States Army and Army Reserves during the Gulf War Era, from September 2006 to March 2007, January 2008 to February 2009, March 2011 to October 2011, October 2012 to October 2013, April 2016 to September 2016, and December 2020 to June 2021. He received the Combat Action Badge in addition to numerous other decorations, medals, and citations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2021, the Veteran appeared and testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Generally, service connection requires: (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. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The nexus element may also be fulfilled by: (1) a nexus opinion or (2) competent and credible evidence showing the Veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.303(a), (d); see also Davidson, 581 F.3d 1313. Additionally, service connection may be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases" and only applies to the chronic diseases set forth in § 3.309(a)). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. See Walker, 708 F.3d at 1338; C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or, whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. See Gilbert, 1 Vet. App. at 53. Entitlement to service connection for thoracolumbar spine degenerative disc disease is granted. The Veteran seeks entitlement to service connection for thoracolumbar spine degenerative disc disease (back condition). Specifically, the Veteran contends his back condition stems from trauma sustained from an improvised explosive device (IED) attack. In a December 2011 statement, the Veteran indicated that his truck was hit with an IED. According to the Veteran, "[t]he gunner's platform that I was standing on collapsed which caused me to injure my back and I bumped my head which caused me to loose [sic] consciousness." Upon review, the Board observes that the Veteran was actually involved in multiple IED attacks. According to a February 2017 VA examination report, the Veteran experienced "two clinically significant traumatic head injuries during his life both during his 2008-09 combat deployment, where he was regularly exposed to explosive blast waves." The Veteran "reports sustaining lower back pain in 10/2008 after an IED explosion" while serving as "a gunner on a turret which collapsed," according to another VA examination report dated February 2017. According to the examination report, the Veteran "was treated conservatively and reports first being seen for lower back pain approximately 2 years later when L4-5 disc degeneration was demonstrated on x-ray," and "reports intermittent lower back pain since 10/2008." An addendum VA medical report dated September 2017 states the Veteran "was diagnosed with a lumbar strain in 10/2008" and that, in April 2010, he "reported lower back pain since 10/2008." Further, the addendum report states that, "3 months later L4-5 disc space narrowing was noted on x-ray imaging." Thereafter, a VA examiner authored a medical opinion dated September 2017 wherein he opined that, "[b]ased on review of [service treatment records (STRs)] the [Veteran's] lower back condition is less likely than not related to events that occyurred [sic] in military service." By way of rationale, the VA examiner reports that, "[t]here are no STRs indicating trauma but the patient reported trauma." According to the examiner, the Veteran "developed facet sclerosis (arthritis) more than one year after separation" and "[s]ubsequent STRs in 2011 imply lower back pain that began in 2011." For the reasons set forth below, the Board assigns no probative weight to the VA examiner's negative nexus opinion. First, although an October 2008 STR reports a "back strain" and placement on limited duty, the VA examiner relies heavily, if not exclusively, upon an absence of documented in-service "trauma." However, the absence of contemporaneous records alone does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Moreover, the VA examiner fails to address the Veteran's service-connected traumatic brain injury (TBI) which, by its very nature, establishes exposure to an in-service trauma. The VA examiner also fails to address such pertinent evidence as a July 2009 Post-Deployment Health Re-Assessment (PDHRA) wherein the Veteran reported experiencing a blast or explosion and a fall, being injured, and experiencing back pain. The VA examiner also fails to address STRs such as those dated April 2010, July 2011, and August 2011 noting the Veteran's in-service injury and ongoing symptoms. Further, the VA examiner fails to discuss a November 2011 MRI report noting low back pain with left leg radiculopathy and revealing degenerative disc disease and facet hypertrophy causing moderate spinal canal stenosis at L4-L5 with narrowing of both lateral recesses and slight impingement of the descending L5 nerves bilaterally. According to the STRs, the Veteran "was set to receive treatment at the VA and chose to deploy instead of addressing this condition." Moreover, the VA examiner fails to report and consider the Veteran's statements regarding causation or when his back symptoms manifested or progressed. See Dalton v. Peake, 21 Vet. App. 23 (2007) (noting that a medical opinion which does not consider the Veteran's reports of symptoms and history, even if recorded in the course of the examination, is inadequate). A bare conclusion, even one reached by a healthcare professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 18, 22 (2007). As such, the Board is unable to conclude that the VA examiner applied valid medical analysis to the significant facts of this particular case. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board has also reviewed and considered the lay evidence of record including, but not limited to, the Veteran's testimony at the October 2021 hearing. The Veteran is competent to report the onset and continuation of his symptoms because this requires only personal knowledge, not medical expertise, as they come to him through his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Also, the Veteran described symptoms at the time that supported a later diagnosis by a medical professional. Considering the circumstances, conditions, and hardships of the Veteran's combat service, the Board finds his statements credible and, thus, entitled to probative weight in this matter. 38 C.F.R. § 3.304(d). Based upon the foregoing, the Board finds that service connection for the Veteran's thoracolumbar spine degenerative disc disease is warranted. Specifically, the most probative evidence of record establishes the Veteran injured his back in service and has experienced continuity of symptomology from his chronic disease since then. 38 C.F.R. § 3.303; Walker, 708 F.3d at 1338. Thus, service connection for his thoracolumbar spine condition is granted. Entitlement to service connection for bilateral lower extremity radiculopathy as secondary to service-connected thoracolumbar spine degenerative disc disease is granted. Service connection may be established on a secondary basis for disability which is proximately due to or the result of 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) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc). In this matter, an August 2011 STR indicates the Veteran complained of low back pain with radicular symptoms down his left leg, which has "progressively gotten worse over last months." VA treatment records dated November 2011 note the Veteran presented "with low back and left leg pain and symptoms consistent with lumbar [degenerative disc disease] and facet arthropathy." The Veteran described experiencing pain and "numbness and tingling from his left buttock down to his knee." A November 2011 MRI revealed degenerative disc disease and facet hypertrophy causing moderate spinal canal stenosis at L4-L5 with narrowing of both lateral recesses, and slight impingement of the descending L5 nerves bilaterally. A February 2017 VA examination report indicates the Veteran has bilateral lower extremity radicular symptoms involving intermittent pain. According to the report, the Veteran endorses "occasional pain radiation into both lower extremities along the posterior aspects to the level of the knees typically lasting several minutes." Based upon the foregoing, the Board finds the evidence of record establishes that the Veteran's bilateral lower extremity radiculopathy is proximately caused by his now service-connected thoracolumbar spine condition. As such, service connection is warranted on a secondary basis. 38 C.F.R. § 3.310. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.