Citation Nr: 21015676 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 12-19 046 DATE: March 18, 2021 ORDER Service connection for a lumbar spine disability is granted. Service connection for right lower extremity radiculopathy is granted. Service connection for left lower extremity radiculopathy is granted. Service connection for lumbar hernia is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, her lumbar spine disability began during active service. 2. The Veteran’s right lower extremity radiculopathy is proximately due to her now service-connected lumbar spine disability. 3. The Veteran’s left lower extremity radiculopathy is proximately due to her now service-connected lumbar spine disability. 4. The Veteran’s lumbar hernia is proximately due to her now service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine 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 right lower extremity radiculopathy as secondary to a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for left lower extremity radiculopathy as secondary to a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for a lumbar hernia as secondary to the Veteran’s lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1970 to September 1973. A Board hearing was held in October 2015. A transcript is of record. The Board remanded the issues on appeal for additional development in April 2016. As part of that decision, the Board remanded a claim for service connection for left upper extremity carpal tunnel syndrome. The Agency of Original Jurisdiction (AOJ) granted the claim in a January 2021 rating decision and it is no longer on appeal. Service Connection 1. Lumbar Spine The Veteran asserts her current lumbar spine disability, which has been diagnosed as degenerative arthritis, lumbar degenerative disc disease, intervertebral disc syndrome (IVDS), lumbar stenosis, and spinal fusion, began when she fell while on active duty service in August 1971. See, e.g., September 2008 Veteran Statement; October 2015 Hearing Transcript, at 7; April 2019 VA exam The Board concludes that the Veteran has a current disability that was caused by an August 1971 in-service fall. 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). The Veteran’s September 1973 separation examination documents the Veteran’s asserted in-service injury, noting she suffered sacral strain in 1971. In a December 1974 service treatment record, created during the Veteran’s reserve service, she reported suffering stabbing pains in her lumbosacral region, and related the pain to the back injury after a fall in August 1971. The Veteran’s account of her in-service injury and continued pain is supported by a September 2008 statement by her former spouse, who was in a relationship with the Veteran at the time. He stated that the Veteran continued to suffer from extreme leg and back pain after her discharge from service and still suffered at the time of his statement. The Veteran’s assertion is further bolstered by a September 2008 statement by P.C., a registered nurse, who met the Veteran in 1974 and stated the Veteran was experienced back problems when they met and had continued to have back pain and problems with her leg since that time. A January 2010 VA examiner diagnosed degenerative disc disease and lumbar stenosis, but opined that the diagnoses were less likely than not related to the Veteran’s service, stating that the Veteran was only treated for sacral strain in 1971, which resolved with no sequela in the majority of cases, and there was nothing to indicate chronic low back pain or serious injury. However, the examiner did not discuss the Veteran’s report in September 1973 of continued back pain, her later reports of continued pain, or the statements given by the Veteran’s former spouse or P.C. As such, the Board finds the examiner’s opinion inadequate and affords it no probative weight. On the other hand, an April 2019 VA examiner diagnosed degenerative arthritis of the lumbar spine, lumbar degenerative disc disease, IVDS, and spinal fusion. The examiner opined that it was at least as likely as not that the Veteran’s lumbar degenerative disc disease was incurred in service as evidenced by the notation of sacral strain in 1971 on the Veteran’s separation physical. The examiner further opined that the other diagnoses – diagnosed degenerative arthritis of the lumbar spine, IVDS, and the spinal fusion – were co-occurring and related to one another. The examiner explained that the Veteran’s account of her injury has been consistent, and the examiner was able to corroborate the Veteran’s statements with other evidence in the record and with the common knowledge that the role of a servicewoman in 1971 would not have been equal to male counterpart. The AOJ obtained a third VA examination in July 2020. The July 2020 examiner opined that the Veteran’s lumbar spine diagnoses were less likely than not related to her active duty service, and instead found the Veteran had suffered a muscular problem in service that had resolved by her separation. However, the Board finds that the examiner’s reasoning is flawed and therefore inadequate. The examiner stated that the Veteran’s in-service injury had resolved by the time of her separation as evidenced by the note in her separation examination; however, that note merely documents the injury and gives no indication whether there was or was not any sequela. The examiner further states that there was “absolutely no evidence” of a chronic back problem after the Veteran’s separation until she fell at work in 1984 and concluded that it was clear from the available evidence that the Veteran’s in-service injury did not cause a chronic back condition and that a later work injury did. Yet, in addition to the Veteran’s repeated credible statements that she continued to experience pain after the August 1971 fall, there are at least two statements supporting the Veteran’s assertion of continued pain after her injury, as well as the positive opinion of the April 2019 VA examiner, none of which were addressed by the July 2020 examiner. Nor did the examiner give a concrete explanation as to why he relied heavily on the absence of treatment records and discounted the Veteran’s credible reports of continued pain. As such, the Board affords the examiner’s opinion no probative weight. For the same reasons, the Board affords no probative weight to an additional December 2020 opinion from yet another VA examiner who merely agreed with the opinion of the July 2020 examiner without providing any reasoning or explanation. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current lumbar spine disability arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a lumbar spine disability, variously diagnosed as degenerative arthritis, lumbar degenerative disc disease, IVDS, lumbar stenosis, and spinal fusion, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Bilateral Lower Extremity Radiculopathy and Lumbar Hernia The Veteran contends that her bilateral lower extremity radiculopathy and lumbar hernia are secondary to her lumbar spine disability. The April 2019 VA examiner diagnosed bilateral lower extremity radiculopathy and lumbar hernia. The examiner opined that the diagnoses were at least as likely as not proximately due to or the result of the Veteran’s lumbar spine disability, for which the Board has granted service connection. The July 2020 VA examiner opined that there was no evidence of a hernia but did not address the April 2019 VA examiner’s opinion. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current bilateral lower extremity radiculopathy and lumbar hernia is proximately due to her now service-connected lumbar spine. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for right lower extremity radiculopathy, left lower extremity radiculopathy, and lumbar hernia is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mine, 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.