Citation Nr: 21076862 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-43 671 DATE: December 28, 2021 ORDER Entitlement to service connection for a low back disability is granted. Entitlement to service connection for bilateral lower extremity radiculopathy is granted. Entitlement to service connection for an acquired psychiatric disorder is granted. FINDINGS OF FACT 1. The Veteran's low back disability is related to an in-service injury or disease. 2. The Veteran's bilateral lower extremity radiculopathy is related to an in-service injury or disease. 3. The Veteran's acquired psychiatric disorder is proximately due to his service connected low back disability and radiculopathy. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral lower extremity radiculopathy have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2015 and May 2017 rating decisions issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). This case was previously before the Board in June 2020 and September 2021. The June 2020 Board decision denied entitlement to service connection for a low back condition, bilateral leg condition, and acquired psychiatric disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Court granted a Joint Motion for Partial Remand (JMPR) of the Veteran and the Secretary of Veterans Affairs (the Parties) on the grounds that the Board failed to obtain an adequate examination for the back condition and inadequately evaluated the private medical provider opinion stating that the Veteran's psychiatric disorder was due to his service-connected ankle disability. The September 2021 Board decision remanded for a new examination for the low back condition, and remanded a bilateral leg condition and acquired psychiatric condition as intertwined. An adequate examination has been obtained on remand; therefore, Board finds that the remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disability. See 38 C.F.R. § 3.310(a). Service connection will also be granted on a secondary basis for an additional disability that results from aggravation of a nonservice connected disability by a service-connected disability. 38 C.F.R. § 3.310(b). 1. Entitlement to service connection for a low back disability and bilateral lower extremity radiculopathy. The Veteran contends that he is entitled to service connection for a low back disability and bilateral radiculopathy related to his service, to include an injury incurred in service from jumping down from the top of a vehicle. The Veteran has a current diagnosis of degenerative arthritis and lumbar bulging disc, as identified in the October 2021 VA examination. The examiner also identified diagnoses of right and left lower extremity radiculopathy. Therefore, the first element of service connection has been met. The Veteran's service treatment records (STRs) indicate the Veteran reported lower back pain in March 1984. He was diagnosed with a possible muscle strain. In addition, in May 1981 he reported sharp pain in his back. Accordingly, as the evidence of record shows an in-service injury or disease, the second element of service connection has been met. The Veteran attended VA examinations in June 2011 and November 2019. The June 2011 VA examiner diagnosed a back strain, but noted that an additional diagnosis is pending an x-ray. While the x-ray was of record showing mild degenerative change, the examiner did not address this x-ray or render and additional diagnosis. As noted in the JMPR, the November 2019 VA examiner provided an inadequate explanation for the conclusion that the Veteran's back condition was not secondary to his ankle condition. As such, these two examinations are inadequate and are afforded little probative weight. The Veteran attended an additional VA examination in October 2021. The examiner found that the Veteran's low back disability was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran was seen in service for back and neck pain in May 1981 and March 1984. The examiner noted the Veteran reported that after he separated from the military, he self-medicated for back pain with over the counter analgesics, and returned for care when they stopped working. The examiner stated that based on the evidence of record and the lay statements from the Veteran, the current diagnosis of degenerative arthritis of the lumbar spine, as well as right and left lower extremity radiculopathy, were at least as likely as not incurred in or caused by the back condition during service. In the alternative, the October 2021 examiner found that the Veteran's bilateral lower extremity radiculopathy was secondary to his low back disability. The Board finds the October 2021 examination and opinions the most probative evidence of record. The examiner considered the Veteran's STRs, in-service reports of back pain, and lay statements regarding his back pain. Therefore, the preponderance of the evidence supports that the Veteran is entitled to service connection for a low back disability and bilateral lower extremity radiculopathy. There is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for an acquired psychiatric disorder. The Veteran contends that his acquired psychiatric disorder is secondary to his service-connected ankle disability, and his chronic pain, which is caused in part by his now service-connected back condition. The Veteran has a current diagnosis of adjustment disorder with depressed mood, as shown in the April 2017 VA examination. The August 2021 private provider opinion indicated a diagnosis of major depressive disorder. Therefore, the first element of service connection has been met. This case turns on whether the Veteran's acquired psychiatric disorder is proximately due to his service-connected disabilities. The Veteran is service connected for a right ankle sprain, and this Board decision establishes service connection for a low back disability and bilateral lower extremity radiculopathy. The April 2017 VA examiner stated that the Veteran attributed his current levels of distress to his back and leg conditions, rather than his ankle condition. The Veteran reported that because of his back condition, he is unable to do activities he used to enjoy. This impacts his self-image, and he feels bad because he is unable to work. The examiner stated that it was his opinion that it was at least as likely as not that the Veteran's acquired psychiatric disorder is secondary to his back and leg conditions, and less likely than not due to his ankle condition. At the time of this examination, the Veteran's back and leg conditions had not yet been service-connected. However, service-connection has now been granted for these conditions in the Board decision. The examiner's opinion is well-reasoned, and it considered the Veteran's medical records and lay statements about his condition. Therefore, the Board finds the opinion probative. The record also contains July 2019 and August 2021 private provider opinions from Dr. D. The July 2019 opinion contained a disability benefits questionnaire stating that the Veteran's major depressive disorder was secondary to his service-connected ankle injury. However, the narrative report provided no rationale for this statement and rather stated that the Veteran's reported his depression was related to "the issues with his service" and his service-connected hearing condition, and also opined the Veteran's major depressive disorder was secondary to his knee injuries. Of note, the Veteran is not service connected for his knee or hearing loss. The examiner submitted a clarifying opinion in August 2021 stating that his major depressive disorder was secondary to his service-connected ankle condition. However, the doctor did not provide any rationale for this opinion; he did not detail how the Veteran's ankle disability causes or aggravates his psychiatric disability or why he was rendering that opinion. Accordingly, the Board finds the April 2017 VA examiner's opinion the most probative evidence of record, as the examiner provided support and rationale for their opinion. The Board finds that the preponderance of the evidence supports finding that the Veteran's acquired psychiatric disorder is proximately due to his service-connected back and radiculopathy. Therefore, the Veteran is entitled to service connection for an acquired psychiatric disorder on a secondary basis. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Patrick, 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.