Citation Nr: 21005258 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-41 889A DATE: February 1, 2021 ORDER The appeal to reopen a claim for service connection for a back condition is granted. Service connection for a back condition is granted. Service connection for bilateral lower extremity radiculopathy (associated with the Veteran’s back condition) is granted. REFERRED The Veteran submitted a motion for revision of the July 1982 rating decision on the basis of clear and unmistakable error (CUE). However, that matter has not been yet adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board has no jurisdiction over that matter and it is referred to the AOJ for appropriate action. See March 24, 2020 Board letter. FINDINGS OF FACT 1. A final July 1982 rating decision denied the Veteran service connection for a back disability because there was no disability shown on the VA examination at the time; the January 1987 confirmed rating decision and March 1998 Board decision declined to reopen that claim because new and material evidence was not received (the final Board decision noted that no nexus to service was shown); evidence received since the March 1998 Board decision includes a March 2012 letter from a private medical provider opining that the Veteran’s back condition was caused by an injury during military service; this evidence relates to an unestablished fact necessary to substantiate the underlying claim of service connection, and, considering the low threshold for reopening, raises a reasonable possibility of substantiating that claim. 2. The Veteran has a diagnosis of degenerative arthritis of the spine, as per January 2014 VA back examination; the Veteran’s March 1976 service records clearly indicate an in-service back injury and he received a medical discharge for the same back condition; in January 2021, the Veteran provided competent and credible testimony that after the in-service fall he continued to have low back pain; and a March 2012 private nexus opinion opined that his back condition was caused by his injury during military service. [The January 2014 VA medical examiner appears to have disregarded the Veteran’s lay reports regarding the persistence of observable symptoms of back pain through the years. Further, the Veteran provided credible testimony that his observable back pain symptoms were unaffected by post-service, work-related injury.)] 3. The Veteran has a diagnosis of bilateral lower extremity radiculopathy and the evidence indicate that this condition is related to the involvement of nerve roots in his mid to lower spine as per the January 2014 VA back examination; and his back condition, including degenerative arthritis of the spine, is now service connected [in this decision]. CONCLUSIONS OF LAW 1. The criteria for reopening a claim for service connection for a back disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). 2. Service connection for a low back disability is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. Service connection for bilateral lower extremity radiculopathy (as secondary to the service-connected low back disorder) is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1973 to June 1976. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely initiated an appeal in December 2014 and perfected it in August 2016. In January 2021, a hearing was held before the undersigned Veterans Law Judge (VLJ). The issues of left and right lower extremity radiculopathy have been re-characterized accordingly for simplicity. For the reasons explained above, the appeals are granted. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arritt, David 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.