Citation Nr: 21074045 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-35 387 DATE: December 14, 2021 ORDER New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a back disability is granted. Entitlement to service connection for a back disability is granted. Entitlement to service connection for right lower extremity radiculopathy is granted. FINDINGS OF FACT 1. In a final October 2009 decision, service connection for a back disability was denied. 2. The evidence associated with the claims file since the October 2013 decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claim for service connection for a back disability. 3. Resolving reasonable doubt in the Veteran's favor, a back disability was incurred during active service. 4. The Veteran's right lower extremity radiculopathy is secondary to her back disability. CONCLUSIONS OF LAW 1. The criteria for reopening a previously denied claim of service connection for a back disability are met. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 2. The criteria for service connection for a back disability are met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. The criteria for service connection for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval from September 2001 to September 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from January 2018 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Additional VA outpatient treatment reports were associated with the claims file following the issuance of a May 2018 statement of the case (SOC). However, the records are unrelated to the claims decided herein and the Veteran is not prejudiced by the Board's adjudication of the issues on appeal. Claim to Reopen Back Disability In a final October 2009 decision, the RO denied service connection for a back disability because the evidence did not show that the Veteran had a clinically diagnosed back disability. The Board finds that new and material evidence has been received to reopen the claim of service connection for a back disability. VA outpatient treatment reports dated in May 2011 reveal that low back pain was listed as an active problem. Additionally, x-rays dated in October 2011 revealed early osteophyte formation at L4-5. The Board finds that evidence new and material. Therefore, the claim is reopened. Service Connection - Back Disability and Right Lower Extremity Radiculopathy The Veteran contends that she has a low back disability due to repetitive trauma during service due to the duties associated with working on board ships and moving heavy equipment. She testified that began seeking treatment following service in 2010 and early osteophyte formation was found on X-rays in 2011, which can be caused by damage and wear from inflammation or mechanical damage. A review of the Veteran's service treatment records (STRs) reveals that the Veteran reported low back pain in November 2004. She reported thoracic spine pain in September 2006. At a July 2009 VA examination, X-rays of the lumbar spine were normal, and X-rays of the thoracic spine revealed scoliosis. The Veteran indicated that she had not claimed a back disability and no disability of the back was diagnosed. VA outpatient treatment reports dated in May 2011 reveal that low back pain was listed as an active problem. X-rays dated in October 2011 revealed early osteophyte formation at L4-5. A January 2013 magnetic resonance imaging (MRI) of the lumbar spine revealed mild degenerative disc disease of the lumbar spine with mild posterior disc protrusion with lateral recess narrowing and bilateral neural foraminal narrowing. In November 2016, the Veteran was assessed with low back pain with radiculopathy. Associated with the claims file is a statement from a fellow service member dated in June 2018. The service member indicated that he and the Veteran were shipmates and were working moving heavy equipment up and down stairwells on the ship when the Veteran reported stabbing pain. Later, the Veteran was suffering from severe dehydration and passed out and had severe back pain. Finally, the Veteran injured her back while in the field, but chose not to obtain any treatment in order to keep her assignment and position on the team. He indicated that he has kept in touch with the Veteran, and she has experienced back pain from 2006 until the present. During a May 2018 VA examination, the Veteran reported that she initially injured her back during service in 2004 when she passed out. She reinjured her back in 2006 offloading equipment from a ship, and again in 2007 when she was lifting heavy equipment while working in the explosive ordnance disposal unit. She reported that her back pain occasionally extends down her thigh into her foot. She reported that the back pain has been ongoing since service. Following a clinical evaluation, the examiner diagnosed lumbar strain and degenerative disease lumbar spine, and opined that it was less likely than not incurred in or caused by the in-service event, injury, or illness. The examiner's rationale was that while the Veteran's STRs include reference to thoracic back pain in 2004, no specific diagnosis was rendered, and the records do not reveal an ongoing back condition. Post-service records do not reveal treatment for the back until after November 2010, and do not support an ongoing or continuing back condition since service. In this case, the Veteran reported experiencing back problems since her active duty service and osteophytes were seen on X-rays as early as 2011. Although the VA examiner opined against the claim, the examiner failed to consider the 2011 X-rays which revealed osteophyte formation which can be caused by damage and wear from inflammation or mechanical damage. The Veteran testified that she suffered repetitive trauma to her spine during service and has suffered with back pain since service. With regard to right lower extremity radiculopathy, diagnostic testing revealed lateral recess narrowing and bilateral neural foraminal narrowing which indicates nerve involvement. The Board notes that lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if lay testimony describing symptoms at the time supports a later diagnosis of a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Based upon the above, the Board finds that the evidence for and against the Veteran's claim for a back disability and right lower extremity radiculopathy is at least in relative equipoise. Therefore, resolving reasonable doubt in her favor, the Board finds that service connection for a back disability with right lower extremity radiculopathy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Cryan, 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.