Citation Nr: 21022134 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 19-35 358 DATE: April 14, 2021 ORDER Entitlement to service connection for status post lumbar spine surgery is granted. Entitlement to service connection for right lumbar radiculopathy, as secondary to the now service-connected status post lumbar spine surgery, is granted. Entitlement to service connection for left lumbar radiculopathy, as secondary to the now service-connected status post lumbar spine surgery, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his status post lumbar spine surgery is at least as likely as not etiologically related to his active duty. 2. The Veteran’s diagnosed right and left lumbar radiculopathy is at least as likely as not etiologically related to his now service-connected status post lumbar spine surgery. CONCLUSIONS OF LAW 1. The criteria for service connection for status post lumbar spine surgery have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for right lumbar radiculopathy, as secondary to the now service-connected status post lumbar spine surgery, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.110. 3. The criteria for service connection for left lumbar radiculopathy, as secondary to the now service-connected status post lumbar spine surgery, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.110. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Army from May 1968 to April 1971, including service in the Republic of Vietnam. His awards and decorations include the Purple Heart Medal and the Army Commendation Medal. This appeal before the Board of Veterans’ Appeals (Board) arose from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims on appeal for further evidentiary development in January 2020. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The determination as to whether each element of a claim is met is based on an analysis of all pertinent evidence of record and evaluation of its competency, credibility and probative value. Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006) & Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection also may be established on a secondary basis for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b); Allen v. Brown, 7 Vet. App. 439 (1995). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102. In considering the pertinent evidence of record in light of the governing legal authority, and resolving all reasonable doubt in the Veteran’s favor on certain elements of these claims, the Board finds that service connection for status post lumbar spine surgery, and for right and left lumbar radiculopathy, as secondary to the status post lumbar spine surgery, is warranted. Status post lumbar spine surgery First addressing the matter of current disability for the lumbar spine disability, the Board notes that status post lumbar spine surgery was diagnosed in a May 2015 VA examination report, which also noted the disabling nature of the current disability. With respect to in-service incurrence of the claimed lumbar spine disability, initially, the Board notes that there is some discrepancy in the record with respect to whether the Veteran had back disability that preexisted his entry into active service. In accordance with VA laws and regulations, a veteran is presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted on the entrance examination report. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). This presumption is rebutted where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Id.; VAOPGCPREC 3-03 (July 16, 2003), 69 Fed. Reg. 25178 (2004); Wagner, 370 F. 3d 1089. An injury or disease that has been determined to be preexisting will be presumed to have been aggravated by service where there is an increase in the severity of the disability during service. Cotant v. Principi, 17 Vet. App. 117, 131 (2003). Review of the Veteran’s service treatment records (STRs) reveals that, in an April 1968 letter, just after his induction into active service, a private doctor noted that he had had intermittent episodes of low back pain after an apparent injury while playing basketball in high school. The pain was noted as related to disc pathology at L4-5. Probable disc degeneration was assessed. An orthopedic consultation performed prior to his March 1968 induction examination, however, noted that x-ray results were within normal limits. No pain was noted on the examination. An August 1968 clinical note indicated that the Veteran had had a history of back pain, apparently during service, for a period of two weeks, approximately near the time of his entry into active service. In the report of medical history provided in connection to a January 1969 physical examination for officer candidate school, the Veteran indicated that he had recurrent back pain. A telegram associated with the STRs notes that the Veteran suffered a contusion to his back in Cambodia in May 1970, while a passenger on a military vehicle on a military mission, when a mine detonated. The Veteran’s service personnel records indicate that he received a Purple Heart Medal and an Army Commendation Medal, for heroism in connection with military operations against a hostile force, as a result of the May 1970 incident. Where the Veteran’s back was noted to be symptom free at the time of his induction examination, and where X-rays were within normal as noted on the induction examination report, the Veteran is presumed to have been sound at the time he was accepted into active service. While the evidence indicates that he had suffered from back pain prior to service and possibly had disc degeneration near the time of his induction, the evidence equally appears to indicate that back pain began after his induction. Most notably, the evidence clearly indicates that he suffered a back contusion in combat later in May 1970. Further, in an October 2015 statement, the Veteran noted his injury as a result of combat, and indicated that he did not have problems with his back prior to his induction into active service. He also credibly reported having recurrent problems with back pain after his separation from service. During a November 2013 physical therapy evaluation, he reported having a history of chronic back pain from the time of his Vietnam service and he reported having a 40 plus year history of progressively worsening back pain, after being hit from debris in Vietnam until the time he underwent post-lumbar laminectomy surgy between February and April 2014. Given the Veteran’s record of combat, the provisions of 38 U.S.C. § 1154(b) are applicable. These provisions create a presumption that a combat Veteran’s reports of injuries sustained in combat are correct. 38 U.S.C. § 1154(b). These provisions apply to an injury and the in-service consequences of that injury. Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). Thus, the evidence indicates that the Veteran continued to have problems with back pain symptomatology from the time of his noted in-service back injury during combat. Accordingly, based on the foregoing evidence, the Board finds that there is no clear and unmistakable evidence showing that the Veteran had a back disability that both preexisted his entry into active service and was not aggravated during his service. Where, as here, VA is unable to rebut the presumption of soundness; then the claim becomes one for service connection based on incurrence of disability in service. See Wagner v. Principi, 370 F.3d 1089, 1094-1096 (Fed. Cir. 2004) (in cases where the presumption of soundness cannot be rebutted, claims for service connection based on aggravation are converted into claims for service connection based on in-service incurrence). As for the matter of a nexus between current lumbar spine disability and the in service back injury, in an August 2015 letter, the Veteran’s private orthopedic surgeon noted that he had treated the Veteran for many years and that the Veteran had suffered from on-and-off low back pain during nearly the entire period of time that he had treated him. The physician noted that he was well aware of the Veteran’s history of back injury in Vietnam when he was thrown from a vehicle by an explosive device. The physician stated that the he believed that a lot of the Veteran’s lower back symptomatology was most likely related to that initial trauma during service. The Board finds the physician’s opinion to be of significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The physician noted his familiarity with the Veteran’s medical history as a result of treating the Veteran for many years, and he noted his familiarity with the Veteran’s in-service injury as a result of combat. Given the Veteran’s history of recurrent back pain, the physician provided the clear opinion that much of the Veteran’s low back symptomatology was most likely related to his in-service injury. The physician’s opinion, therefore, constitutes competent, probative evidence tending to support the award of service connection for the Veteran’s post-surgery lumbar spine disability. Notably, while the May 2015 VA examiner provided a negative opinion as to the etiology of the claimed low back disability, the examiner relied on an absence of continuing evidence in service, or since, for the proposition that the Veteran’s in-service back injury had resolved at the time of discharge. See Buchanan, 451 F.3d at 1336, n. 1 (a VA’s examiner’s opinion relying on an absence of contemporaneous medical evidence, and not considering lay statements, is inadequate). Additionally, the examiner asserted that the Veteran’s current disability could be traced back to December 2013, without providing reasons why. The examiner did not address the evidence of back pain extending back many years. Additionally, while an additional unfavorable opinion was obtained from a VA-contracted examiner in February 2020, the opinion was equivocal in nature where the examiner also pointed to the absence of reports of back pain in the Veteran’s discharge examination, but then stated that the Veteran’s back condition was aggravated and exacerbated by the rigors and multiple stressors of service, such as climbing, marching, standing, walking, jumping, lifting, and carrying heavy equipment and wearing heavy boots. Thus, the opinion is of minimal probative value; in spite of the fact that it would appear to, at least minimally, support the award of service connection for the lumbar spine disability. Reading the August 2015 private opinion as a whole, and in the context of the evidence of record, to specifically include evidence of the Veteran’s low back injury in combat and his reports to medical providers that he continued to endure low back pain symptomatology since the in-service injury, the Board finds that the opinion is of sufficient probative weight to warrant a finding that the Veteran’s lumbar spine disability is at least as likely as not etiologically related to his active service. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Accordingly, in view of the totality of the evidence, the Board concludes that the evidence is at least in equipoise. In such circumstances, the regulations dictate that reasonable doubt is to be resolved in the Veteran’s favor. Accordingly, as the benefit-of-the-doubt rule is for application, the Board finds that service connection for status post lumbar spine surgery is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56, 38 C.F.R. § 3.102. Right and left lumbar radiculopathy With regard to the matter of current radiculopathy disability of the lower extremities, the Board notes that, in the March 2020 VA examination report, the examiner diagnosed bilateral lumbar radiculopathy. Left L4 and L5 radiculopathy was previously diagnosed in a January 2014 private treatment report. On the question of medical etiology of the lumbar radiculopathy, by nature of radiculopathy being a symptom of lumbar spine disability, the etiology relationship is evident in this case. Further, in the March 2020 opinion report, the VA examiner clearly opined that the Veteran’s lumbar radiculopathy was at least as likely as not secondary to the status post back surgery. The Board finds the VA examiner’s opinion to be of significant probative value, as it is consistent with the evidence of record, including the nature of the diagnosis of lumbar spine radiculopathy. Cf. Nieves-Rodriguez, 22 Vet. App. at 301. Thus, the examiner’s opinion supports the award of secondary service connection for lumbar radiculopathy, on a causation basis. 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. 439. Although the opinion may be lacking in rationale, the Board points out that a clinician is only required to consider all the relevant evidence before forming an opinion and support his or her opinion with an analysis that the Board can consider and weigh against contrary opinions. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate). In this case, the relationship between the radiculopathy and the lumbar spine disability is readily apparent, and there are no contrary opinions of record. Reading the VA examiner’s opinion as a whole, and in the context of the evidence of record, the Board finds that the opinion is of sufficient probative weight to warrant a finding that the Veteran’s right and left lumbar radiculopathy are at least as likely as not etiologically related to his now service-connected lumbar spine disability. See Acevedo, 25 Vet. App. at 294. Accordingly, in view of the totality of the evidence, and with resolution of reasonable doubt on these matters in the Veteran’s favor, the Board concludes that the criteria for service connection for right and left lumbar radiculopathy, as secondary to the now service-connected lumbar spine disability are met. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.