Citation Nr: 21075983 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-50 697 DATE: December 22, 2021 ORDER Entitlement to service connection for lumbar spine disability is granted. Entitlement to service connection for radiculopathy, bilateral lower extremities associated with lumbar spine disability, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his lumbar spine disability is attributable to service. 2. The Veteran's currently diagnosed radiculopathy, bilateral lower extremities is related to his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar spine disability have been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. § 3.303, 3.307, 3.309. 2. The criteria for service connection for radiculopathy, bilateral lower extremities, to include as secondary to lumbar spine disability, have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1993 to April 1998. In September 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In June 2017, the Veteran filed a claim for entitlement to a total disability rating based on individual unemployability (TDIU). In November and December 2017, the agency of original jurisdiction (AOJ) denied the claim. In January 2018, the Veteran appealed the denial. However, in March 2018, he withdrew the claim. As such, the issue is not before the Board. The Veteran submitted additional evidence after the October 2018 Statement of the Case (SSOC). This evidence was not previously considered by the AOJ. Statutory provisions allow for an automatic waiver of initial AOJ review of post-substantive appeal evidence if submitted by the veteran for appeals filed after February 2, 2013. See 38 U.S.C. § 7105(e); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Here, the Veteran's substantive appeal was filed in November 2018. Therefore, the automatic waiver provision applies. The Board shall consider the newly submitted evidence in the first instance. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Moreover, certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if they are established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board."). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a), such as arthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Entitlement to service connection for lumbar spine disability The Veteran contends that his lumbar spine disability is due to military service. The Veteran has a current diagnosis of low back pain, sacroiliitis, intervertebral disc syndrome (IVDS), lumbar spondylosis, lumbar disc degeneration, lumbar annular tear, and lumbar myofascial. As such, element one under Shedden is met. The Veteran's service treatment records (STRs) document complaints, treatments, or diagnosis for a leg injury but not a back injury. During his February 1994 Report of Medical Examination, Marine Corps Enlistment physical, the Veteran's spine, and other musculoskeletal systems were clinically normal. Additionally, the Veteran noted that he did not have recurrent back pain. In 1995 or 1996, the Veteran was seen for left foot pain. The examiner diagnosed the Veteran with left foot contusion vs. other. The Veteran stated that he experienced left foot pain when, while on a truck, he had a twisting type injury. During his November 1997 Report of Medical History: Separation exam, the Veteran's spine and other musculoskeletal systems were clinically normal. In July 2010, the Veteran was seen at the Virginia Spine Institute for pain in the lumbar region. The examiner diagnosed the Veteran with low back pain, sacroiliitis, lumbar annular tear, and lumbar myofascial. In July and November 2018, the Veteran submitted statements from C.C. and J.L. C.C. remembered the Veteran experiencing back problems early on, and those problems held the Veteran back more than once. J.L. remembered, due to back pain, the Veteran dropped out and fell back in formation during morning physical training. During his September 2021 Board hearing, the Veteran testified that during service, he worked as a firefighter. He reported that his unit drove and rode 19 Alphas, which was basically the equivalent of the height of a tractor trailer. As he was coming off the rig, he fell, and twisted as he was coming down. At that time, he was wearing full pack/gear, which was about 40 to 60 pounds. He went to the clinic; however, the examiner only noted the foot injury. The Veteran stated that he did not twist his foot; but instead, he landed on his gear and felt a sharp pain in his back. The examiner at sickcall noted swelling and gave the Veteran ibuprofen. The Veteran stated that he also went to sickcall and was given a steroids/methyl prednisone for his back. After the injury, he experienced problems, but his fellow Marines assisted him. After leaving service, he saw a private physician who continued with the steroid packs and eventually upgraded to opiates. The Veteran was then seen at the Virginia Spine Institute where they found old damage, i.e., degeneration; blown discs; and two discs that had leaked over the years. In December 2021, the Veteran submitted a statement from his treating physician, B.R.S. The Veteran stated when he served in the Marine Corps, he worked as an aircraft rescue firefighter. In 1996 when he was getting out of a crash truck during a training exercise, he missed a step and fell three to four feet to the ground while wearing full turnout gear. The gear was bunker pants and jacket with SCBA (air tank) that totaled 40 plus pounds. When he landed, he felt a pop in his lower back where the base of the tank ended, and it felt like he had pins and needles in his left leg. He could not walk normally or bend for several days, so he went to sickcall. After that incident, he saw a drop in his PT scores. B.R.S submitted an article entitled, Acute Mechanical Injury of the Human Intervertebral Disc: Link to Degeneration and Pain. The article provided information about mechanical injury and intervertebral disc injury. Based on the information, B.R.S. opined that the claimed condition is more likely than not a direct result of the Veteran's fall from the vehicle with the added weight of his gear during his military service. B.R.S. stated that the Veteran had no other risk factors that may have contributed to the current condition. B.R.S. stated that it has been his personal experience and is documented in the medical literature that a single traumatic injury to a lumbar disc will lead to progressive destruction of the disc and adjacent segments. Based on the evidence of record, the Board finds that service connection for lumbar spine disability is warranted. The Board finds the Veteran's reports as to the onset and continuity of his back pain to be credible. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Additionally, the Veteran's treating physician attributed the lumbar spine disability to military service. Therefore, after affording the Veteran the benefit-of-the-doubt, the Board finds that elements two and three under Shedden are met, and service connection for lumbar spine disability is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.309, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to service connection for radiculopathy, bilateral lower extremities, to include as secondary to lumbar spine disability The Veteran contends that his radiculopathy, bilateral lower extremities is secondary to his lumbar spine disability. The Veteran has a current diagnosis of radiculopathy, bilateral lower extremities. As such, element one under Wallin is met. The Veteran is service connected for lumbar spine disability. As such, element two under Wallin is met. Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The Board finds that the competent medical evidence of record supports the Veteran's lumbar spine disability being the proximate cause of his bilateral lower extremity radiculopathy. The Veteran's treatment records note that in 2015, the Veteran underwent an EMG study that confirmed moderate left and right chronic L4 and S1 radiculopathy. Additionally, the Veteran's lay statements have been consistent throughout the record that he experienced radiating pain from his back to his lower extremities following his in-service injury. Therefore, the Board finds that the benefit-of-the-doubt should be resolved in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). In summary, the Board finds that the competent medical evidence demonstrates that the Veteran's service-connected lumbar spine disability is the proximate cause of the radiculopathy, right and left lower extremities, thus warranting secondary service connection. 38 C.F.R. § 3.303, 3.310. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, T. 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.