Citation Nr: 21008550 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-43 173 DATE: February 17, 2021 ORDER Service connection for a low back disability is granted. Service connection for radiculopathy of the bilateral lower extremities is granted. FINDINGS OF FACT 1. The Veteran’s low back disabilities (degenerative arthritis of the spine, intervertebral disc syndrome, and degenerative disc disease with disc herniation) are directly related to his active service. 2. The Veteran’s radiculopathy of the bilateral lower extremities is proximately due to or the result of his low back disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for radiculopathy of the bilateral lower extremities are met. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1970 to December 1971. This matter is before the Board of Veterans' Appeal (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in November 2018. The Board previously remanded the appeal in June 2019, and the matter has been returned for appellate consideration. As the Board’s decision herein represents a full grant of the benefits sought on appeal, questions of substantial compliance with the Board’s remand instructions and satisfaction of the duties to notify and to assist are moot. 1. Entitlement to service connection for a low back disability and for radiculopathy of the bilateral lower extremities is granted. The Veteran contends that his current low back disability is directly related to his in-service duties. For the reasons that follow, the Board determines that service connection for a low back disability, and its related radiculopathy of the lower extremities, is warranted. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). First, the results of a November 2019 VA examination show that the Veteran currently suffers from a low back disability, namely degenerative arthritis of the spine, intervertebral disc syndrome, and degenerative disc disease with disc herniation. That same examination also showed that the Veteran has radiculopathy of the bilateral lower extremities. At his November 2018 hearing, the Veteran described his in-service duties, noting that he first noticed back pain during his basic training, and that his pain increased consistent with his duties as a track vehicle mechanic. The Veteran described lifting and moving heavy objects as a result of his occupational specialty, as well as the pain that such duties resulted in. The Veteran stated that he avoided reporting this pain during his active and inactive service periods, and that he did not have insurance for long stretches following his discharge. Though there is no record of the Veteran’s suffering a back injury during his active service, the Board finds the Veteran’s descriptions of his in-service pain to be credible; the in-service incurrence criterion is met. The final question is whether the Veteran’s current disability is related to his active service. The examiner from the November 2019 VA examination determined that it is. In his opinion, the examiner determined that the Veteran’s current disabilities “are directly due to service,” noting that the Veteran’s “military occupational specialty as a mechanic placed an undue strain on his low back.” Thus, the examiner concluded that the Veteran’s disabilities, to include his bilateral lower extremity radiculopathy, are at least as likely as not related to his active service. In response, the RO read this opinion, including notations of a pre-service injury, to read that the examiner’s positive opinion was based on an inaccurate factual premise. The RO obtained an August 2020 addendum opinion from a new examiner, who came to the opposite conclusion of the November 2019 examiner. The Board, however, does not agree with the RO. First, it is clear that the November 2019 examiner understood that the Veteran’s 1969 injury preexisted his active service, as he described the dates of that preexisting injury and later answered questions regarding whether that disability was aggravated by service. Read as a whole, it is clear to the Board that the examiner determined that the Veteran’s pre-service injury was acute, and that his current disabilities relate to his in-service MOS. Second, in obtaining the addendum opinion, the RO included its own fact-finding that was provided to the examiner. It appears that the examiner included such facts in his addendum opinion. It is not clear whether the examiner’s opinion was truly made based on the facts of the case (certainly, the addendum did not discuss the Veteran’s own statements, including those regarding his in-service pain or lack of post-service insurance, resulting in an inability to receive care) or on the characterization from the RO. In the end, the Board finds that the evidence as to whether the Veteran’s current disabilities are related to his active service to, at the least, be in equipoise. Accordingly, resolving reasonable doubt in his favor, the Board finds the nexus element of the service connection framework to be met. In summary, the Board finds that the Veteran has a current back disability that is at least as likely as not related to his in-service MOS as a mechanic. The Board further finds that the evidence shows that he suffers from bilateral lower extremity radiculopathy secondary to his back disability, and as such symptoms are to be rated with the primary disability pursuant to the applicable Diagnostic Code, the Board has jurisdiction to grant this claim even without a formal application for benefits. Service connection for a back disability with bilateral lower extremity radiculopathy is therefore granted. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.R. Higgins, Associate 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.