Citation Nr: 21013850 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-39 007 DATE: March 10, 2021 ORDER Entitlement to service connection for lower back disability, to include degenerative disc disease and lumbar spinal stenosis, is granted. Entitlement to service connection for radiculopathy of the bilateral lower extremities is granted. FINDINGS OF FACT 1. The Veteran’s lower back disability began during active service. 2. The evidence is at least in equipoise as to whether the Veteran’s lower extremity radiculopathy is proximately due to his service-connected lower back disability CONCLUSION OF LAW The criteria for service connection for lower back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. The criteria for service connection for radiculopathy as secondary to service connected lower back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1957 to December 1960. This case is before the Board of Veterans’ Appeals (Board) from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans’ Law Judge at a February 2017 hearing. In November 2017, the Board remanded the claim for additional development, and in November 2018 the Board issued a decision denying the Veteran’s claims for service connection for a lower back disability and left and right carpel tunnel syndrome. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). By an April 2020 memorandum decision, the Court vacated the Board’s denial of the claim for lower back disability (4/29/2020 CAVC Decision, pg. 64). The Board remanded the claim in December 2020 for an addendum medical opinion. Finding there has been substantial compliance with the Board’s remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board may proceed with appellate review. Lower back disability. The Veteran has claimed service connection for a lower back disability, contending his back pain began during active service when he and a friend were swimming and diving in a pool (2/1/2017 Hearing Transcript, pg. 8). The Veteran further reports while on Guam, his back would hurt upon moving his neck. The Veteran described going to sick bay, using a heat lamp to alleviate symptoms, and the hospital corpsman giving him all-purpose capsules for pain (9/10/2018 VA 21-4138 Statement In Support of Claim). 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). The Veteran has current diagnoses of diagnoses of degenerative disc disease and lumbar spinal stenosis with radiation to his lower extremities (2/23/2021 Medical Treatment Record - Non-Government Facility; 2/01/2018 C&P Exam). The Veteran’s service treatment included an entry from February 1959, referencing a complaint of hurt back, with pain in certain positions (7/26/2013 STR, pg. 5). The Veteran’s spine was clinically evaluated as normal during his separation physical (7/26/2013 STR – Medical, pg. 21). With regard to the separation physical, the Veteran has recollected being evaluated by a doctor along with 8-10 other service members and the entire examination took no more than 30 minutes. The Veteran recalls the physical focusing on his irregular heartbeat and would not put much faith in the statement that a normal spine was recorded (2/23/2021 Form 9). After service, the Veteran contends that he began going to a doctor in 1960 and received muscle relaxers for his back. He began seeing a chiropractor for back pain, from 1969 to the death of his first chiropractor in 1998 (2/23/2021 Form 9; 9/26/2018 Correspondence; 9/26/2018 Third Party Correspondence). The Veteran was treated by a different chiropractor from 1998 through 2016 (2/02/2017 Medical Treatment Record -Non-Government Facility). The Veteran was afforded a January 2018 VA examination. The examiner confirmed a current diagnosis of degenerative arthritis of the spine. The examiner opined that the Veteran’s current disability was less likely than not (less than 50 percent probability) incurred in or caused by the inservice low back complaint. The examiner did not adequately consider the appellant's lay testimony regarding continuous symptoms, treatment following service, or adequately explain why the Veteran's current lower back disability could not be related to his active service, requiring an addendum opinion. A January 2021 addendum opinion was obtained (1/08/2021 C&P Exam) and the examiner, noting the Veteran’s diagnosis of degenerative arthritis of the lumbar spine, opined that the condition could not be corroborated as having occurred during service. The examiner, in formulating this opinion, indicated the nature of treatment of the in-service injury suggested the condition resolved prior to separation from service. (1/08/2021 C&P Exam). In weighing the evidence, the Board finds the record shows a complaint of back injury in service, and consistent, credible lay evidence of post service treatment since 1960. Although the Veteran’s separation physical indicated a normal back, the Veteran has provided details about that physical that the Board finds reduce the probative weight of that finding. Corroboration of medical treatment of the Veteran’s back in 1969 and thereafter is of record. 9/26/2018 Third Party Correspondence; 9/26/2018 Correspondence). In sum, the record suggests the Veteran’s back symptoms increased in severity over the years ultimately resulting in the Veterans present, formal diagnosis. The Board finds the January 2018 VA examination and January 2021 addendum opinions did not thoroughly address the Veteran's lay descriptions of his post service history of back pain, to include statements of continuity of record. Neither provider was able to articulate why the Veteran’s statements were not credible. As such, the Board finds the January 2018 and January 2021 opinions to be of less probative weight than the Veteran's descriptions of back pain history as corroborated by other evidence of record. After review of the record and considering the conflicting evidence of record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current degenerative disc disease and lumbar spinal stenosis, claimed as lower back disability, arose in service. Additionally, the medical evidence of record reflects that the Veteran’s back disability includes radicular symptoms of his lower extremities (2/23/2021 Medical Treatment Record - Non-Government Facility, pg. 4). These are deemed part and parcel with the low back claim. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the spine, Note (1). In sum, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current lower back disability, with associated radiculopathy of the bilateral lower extremities, arose in service. Resolving all doubt in favor of the Veteran, claims of service connection for lower back disability, and associated bilateral radiculopathy are granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.