Citation Nr: 21013673 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-06 590A DATE: March 10, 2021 ORDER Entitlement to service connection for lumbar radiculopathy is granted. FINDING OF FACT The competent, credible, and probative lay and medical evidence is at least in relative equipoise as to whether the Veteran’s lumbar radiculopathy was incurred in or otherwise caused by active duty service. CONCLUSION OF LAW The criteria for service connection for lumbar radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; Diagnostic Code 8720. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps, Army, and Air Force, with additional service in the National Guard. He is a Veteran of the peacetime and Persian Gulf War with active duty dates from November 1975 to November 1978; September 1979 to September 1982; February to July 1990; March to September 2002; January to April 2003; November 2004 to September 2005; and October 2005 to May 2006. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a May 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Detroit. In December 2018, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board’s 2018 remand directed the RO to obtain outstanding private treatment records from Dr. SM mentioned in the Veteran’s March 2015 Form 9. The RO was instructed to provide the appropriate information release forms and readjudicate the claim with the updated file. The RO provided the proper forms to the Veteran and, in response, he indicated all treatment records were held by the Detroit VA. Treatment records the facility dated 2006 to the present were uploaded to the claims file. As such, the Board finds there was substantial compliance with its December 2018 remand directives to obtain outstanding treatment records. Id. at 271. Unfortunately, remand is still necessary to address deficiencies in the VA examination and further develop the claim. 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (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. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those diseases explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic diseases, the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Arthritis and neuropathy, as well as other organic diseases of the nervous system, are recognized as chronic diseases under 38 C.F.R. § 3.309(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for low back condition The Veteran contends he is entitled to service connection for lower back pain. Specifically, he asserts his pain began during active duty and that he received diagnoses while in-service, including scoliosis and arthritis. He reports he was reluctant to make complaints of back pain due to loss of promotion potential and therefore the record does not show consistent treatment or complaint. He believes he was eligible for medical discharge had his back pain been fully treated while in-service and it has progressed to excruciating pain that now limits his daily life and ability to stay active. His representative contends the agency of original jurisdiction (AOJ) missed critical service treatment records (STRs) indicating the Veteran sustained in-service back injuries that have since manifested into his current back disabilities, and as such, the 2013 VA examination is inadequate for failure to consider the in-service evidence and any relationship to his current back pain. The question before the Board is whether the Veteran has a current disability that is etiologically related to his active duty military service. The Board concludes the preponderance of the evidence establishes a continuity of low back symptomology since service. The Veteran has a current diagnosis of lumbar radiculopathy of the left lower extremity with a diagnosis date of 1984. See VA Examination, 5/8/2013, pg 2/25. The Veteran submitted medical records and a Disability Benefits Questionnaire (DBQ) from private physicians, Dr. SM and Dr. JS, also indicating diagnoses of mechanical back pain syndrome with onset in 1975, facet joint arthropathy with onset in 1984, degenerative disc disease with onset in 2011, and foraminal/lateral/recess stenosis with onset in 1975. See DBQ, 3/17/2015; DBQ,6/16/2016. The Veteran’s service treatment records show consistent complaints of low back pain during his active duty service and thereafter. Records from 1980 show frequent complaints of back pain and a note from January 1981 indicates he experienced chronic low back pain for at least five years. See STR, 6/4/2016, pgs. 36, 49, 51/73. Left lower back pain is also indicated in notes from 1979 and records dated in 1978 indicates pain had existed for two years after being kicked in the back. Pg. 58, 64, 65/73. The earliest record of low back pain is found in May 1976 which notes X-ray imaging of the sacrum was taken and a diagnosis of myospasm was provided. Pg 67/73. Several notes are also found in the Veteran’s National Guard medical records regarding his 1984 ruptured disc. See STR, 6/4/2016, pg. 34, 36/45. The Veteran was provided an in-person VA examination in May 2013. The examiner opined the Veteran’s low back condition was less likely than not incurred in or caused by an in-service injury, event, or illness. See VA Examination, 5/8/2013, pg 14/25. He reasoned that, although the Veteran had numerous visits for back pain during service, there was no documentation of radiculopathy or complaints of pain or numbness in the left leg. He notes that these symptoms were not described until post-service when he was diagnosed with a ruptured lumbar disc in 1984. He notes an X-ray performed in-service did not show degenerative arthritis and states that the earliest symptoms were noted in the 2011 MRI. The Board notes the negative opinion provided by the examiner but affords it little probative value. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner failed to give due consideration to the Veteran’s contentions and lay statements and the several notations of back pain throughout his service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006). The opinion does not provide medical analysis on whether the Veteran’s in-service pain is related to or may have progressed into his current lumbar spine condition. The examiner’s restatement of the Veteran’s active duty timeline is also inconsistent with the record. The Veteran served in various capacities of active duty since 1975 and has complaints and diagnoses, in addition to his post-service 1984 ruptured disc, while on active duty and were not considered. Additionally, the examiner provides a negative opinion based on a lack of complaints describing the symptoms he currently experiences, i.e. numbness in the left leg. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). However, the Veteran’s treatment record does contain complaints of similar symptoms and medical evidence supports their existence in-service with continuity of symptomology after separation. The evidence of the Veteran’s in-service treatment over decades demonstrates his condition is not an isolated incident and is sufficient to establish chronicity in-service. 38 C.F.R. § 3.303 (b). The totality of the evidence is consistent with the Veteran’s lay statements and assertations regarding a continuity of symptoms of lower left extremity radiculopathy. See Gardin v. Shinseki, 613 F.3d 1374, 1379 (Fed. Cir. 2010); Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). The Veteran is competent to report that he experienced symptoms of lower back pain, left leg tingling, and sharp pain following physical activity. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person). He has presented credible testimony his symptoms began in and have continued since service, and they are given probative weight as they are internally consistent and consistent with other evidence of record, which shows that these symptoms are attributable to his in-service low back diagnoses. In light of the foregoing evidence, the Board finds that the Veteran’s low back disability began during service. Furthermore, the evidence is at least in equipoise that, despite the lack of a diagnosis of radiculopathy in service, the Veteran’s condition was noted and he has shown a continuity of symptomatology since separation. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the Board concludes entitlement to service connection for lumbar radiculopathy of the left lower extremity is warranted. Kalisse Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Chapman, 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.