Citation Nr: 21069386 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-17 002 DATE: November 18, 2021 ORDER Service connection for a lumbar spine disability is granted. REMANDED Service connection for right lower extremity radiculopathy, to include as secondary to the service-connected lumbar spine disability, is remanded. Service connection for left lower extremity radiculopathy, to include as secondary to the service-connected lumbar spine disability, is remanded. FINDING OF FACT The Veteran began experiencing symptoms of his current lumbar spine disability during service, and he has continued to experience such symptomatology since separation from service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1985 to September 1989. In July 2021, he testified at a hearing before the undersigned Veterans Law Judge. Service Connection Lumbar Spine Disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Veteran seeks service connection for a lumbar spine disability which he asserts onset in service. The December 2015 VA examination report reflects that he has a current diagnosis of lumbar spine degenerative disc disease. As such, the current disability prong of this claim is met, and the remaining issue is whether the current disability can be related to any in-service event or whether it onset therein. Importantly, the Veteran testified at the July 2021 hearing that he has experienced symptoms of back pain since injuring it in an in-service motor vehicle incident. He explained that he re injured his back again later in service when he was loading items into the back of a deuce-and-a-half and it locked up on him. He noted that he sought treatment in service for back pain and that the symptoms have continued since that time. Service treatment records (STRs) confirm that he treated for lower back pain in service in 1987. The Board of Veterans' Appeals (Board) finds the Veteran's lay reports as to the onset of his lower back symptoms to be credible, as they are corroborated by the medical evidence of record. His testimony alone is sufficient to establish service connection for his lumbar spine disability. As such, service connection for a lumbar spine disability is allowed, as it is a condition for which a continuity of symptoms has been shown since active duty. In reaching this decision, the Board acknowledges that the December 2015 VA examiner and a January 2016 VA addendum opinion examiner opined against service connection for the Veteran's lumbar spine disability. However, while the Board cannot ignore or disregard the VA examiners' medical conclusions [Willis v. Derwinski, 1 Vet. App. 66 (1991)], the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, neither negative nexus opinion considered the Veteran's lay reports of continuing to experience back symptoms since injuring his back in service. As the Veteran's lay statements regarding the onset and history of his lumbar spine symptoms were not considered in rendering the negative nexus opinions, the Board affords the opinions minimal, if any, probative weight, as they did not consider all relevant evidence. In light of the above, the Board finds the Veteran's competent, credible reports of his lumbar spine disability symptoms having onset in active service to be more probative than the 2015 and 2016 VA examiners' negative nexus opinions which did not address all relevant evidence. The weight of the evidence supports a finding that the Veteran's lumbar spine disability symptoms onset in service and have continued since then. Accordingly, service connection for a lumbar spine disability is warranted, as it is a current disability that onset in active service REASONS FOR REMAND Service connection for bilateral lower extremity radiculopathy, to include as secondary to the service-connected lumbar spine disability The Veteran also seeks service connection for radiculopathy of his lower extremities. He was afforded a VA examination to address the nature of this condition in December 2015, at which time the examiner found that the Veteran did not have radiculopathy in either lower extremity. The Veteran testified before the Board that he has experienced, and continues to experience, symptoms of radiculopathy in both legs which radiate down from his spine. His VA treatment records contain a February 2021 treatment note which states that he experiences sciatica in his lower extremities related to his lower back disability. However, this treatment note does not appear to be rendering a diagnosis of bilateral lower extremity sciatica, but, rather, is merely restating the Veteran's reports. Without the appropriate medical training and expertise, which the record has failed to show, the Veteran is not competent to provide an opinion on a medical matter, such as providing a diagnosis for lower extremity sciatica or radiculopathy. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In any event, the Veteran is competent to report his symptoms of pain and numbness radiating down his legs from his spine. The VA examination which determined that he did not have radiculopathy did not explain why his competent reports of the symptoms he was experiencing in his legs does not amount to a diagnosable radiculopathy condition. The Board finds that a new VA examination is needed to determine the nature and etiology of his bilateral leg symptoms before a final appellate decision can be made on these claims. Accordingly, these matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to address the etiology of any right and/or left lower extremity radiculopathy he may have. The examiner should review the Veteran's claims file, including his medical records, the July 2021 Board hearing testimony, and this Remand, and determine whether the Veteran has a diagnosis of radiculopathy in either (or both) of his legs. If no diagnosis is rendered, the examiner should explain why the Veteran's competent reports of symptoms radiating from his spine down his legs do not amount to a diagnosable radiculopathy condition. If radiculopathy in either leg (or both legs) is diagnosed, the examiner should opine: (a.) Is it at least as likely as not (i.e., 50 percent probability or greater) that such diagnosed radiculopathy disability is related to any incident of the Veteran's active service? (b.) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's right and/or left leg radiculopathy was caused by his service-connected lumbar spine disability? (c.) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's right and/or left leg radiculopathy was aggravated (i.e., made worse) by his service-connected lumbar spine disability? If so, the examiner should identify the degree of impairment that is due to such aggravation. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA (CONTINUED ON NEXT PAGE) medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.