Citation Nr: 21023716 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-24 602 DATE: April 21, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for bilateral lower extremity radiculopathy is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability did not manifest during service, nor within one year of separation from service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. The Veteran’s bilateral lower extremity radiculopathy did not manifest during service, nor within the year of separation from service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease; bilateral lower radiculopathy was not caused or aggravated by service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a) (2021). 2. The criteria for service connection for bilateral lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from February 1964 to February 1967. The Veteran died in January 2017, and the Appellant is his surviving spouse. These issues come before the Board of Veterans’ Appeals (Board) on appeal from a 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Appellant testified at a hearing before the undersigned Veterans Law Judge, and a transcript of the hearing has been associated with the claims file. The Appellant has been properly substituted in this matter. The Board previously remanded these issues in May 2019 and August 2020. Service Connection Service connection will be granted if the evidence in the record demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Certain chronic diseases, such as degenerative arthritis, are subject to presumptive service connection if they manifest to a compensable degree within one year from separation from service, even if there is no evidence of the disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, such chronic diseases may use the alternative method of continuity of symptomatology to establish the second and third Saunders elements if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); see 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For chronic diseases listed under 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology. Id. at 1338-40. Lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In the October 2019 VA examination, the examiner determined that the Veteran’s radiculopathy was due to his lumbar spine disability, and therefore secondary service connection must be considered for this disability. Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence of (1) a current chronic disability for which service connection is sought; (2) an already service-connected disability; and (3) that the disability for which service connection is sought was either caused or aggravated by the already service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for a lumbar spine disability is denied. The Veteran’s service treatment records (STRs) are silent as to any complaints, diagnoses, or treatment for back conditions. The Veteran and the Appellant submitted statements describing in-service incidents where the Veteran twisted his spine, landed on his back while diving, landed on his feet after sliding down a flagpole, and fell out of a tree. The Veteran’s private treatment records show he was diagnosed with degenerative arthritis of the spine in 2006, and thus the first element of service connection has been met. VA examiners reviewed the Veteran’s records and provided opinions in October 2019 and September 2020. In the October 2019 opinion, the examiner opined that the Veteran’s degenerative arthritis of the spine and associated spinal stenosis was more likely related to the wear and tear on the spine and spinal discs caused by aging and not due to service. The examiner further notes that the first mention of degenerative arthritis of the spine in the Veteran’s medical records was in 2006, almost 40 years after his separation from service. Additionally, the examiner opined that while the Veteran mentioned a handful of incidents during service involving his back, such as twisting his back, landing on his back when diving, sliding down a flagpole and landing on his feet, and falling out of a tree and rolling to try and avoid injury, the fact that he never sought medical treatment in service indicates he was not injured to the point where it affected his ability to perform his assigned duties. The examiner also noted the Veteran reported back pain prior to entry into service, and there was no evidence indicating his back pain was aggravated by his service. In the September 2020 opinion, the examiner discussed the couple of mentions of back pain or chiropractic treatment near the Veteran’s entry into service, finding that there was not clear and compelling evidence that the Veteran had any back issues prior to service. While the examiner used the incorrect standard of “clear and compelling” instead of “clear and unmistakable,” the examiner’s opinion is still adequate because “clear and compelling” is a lesser standard than the required “clear and unmistakable” and thus either way the evidence of record is insufficient to establish a preexisting lumbar spine disability. The presumption of soundness therefore attaches. If a disorder was not noted on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner v. Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004). Here, the Board finds that VA has not shown clear and unmistakable evidence of a preexisting back disability. Accordingly, the presumption of soundness attaches, and the claim is one for service connection. The examiner also addressed the Veteran’s and the Appellant’s lay statements concerning both incidents where he fell during service, as well as complaints of back pain while performing guard duty during service. However, in addition to there being no evidence of treatment in the Veteran’s STRs, within a year of separation from service, or a chronicity of treatment, the examiner opined that there is no evidence to relate the pathology of his later lumbar spine disabilities to these events. While the Veteran’s degenerative arthritis is listed among the chronic conditions eligible for presumptive service connection under 38 U.S.C. § 3.309(a), he was not diagnosed with degenerative arthritis during service nor within one year of separation from service. Additionally, he did not report symptoms of degenerative arthritis on a continuous basis or receive continuous treatment for degenerative arthritis until nearly 40 years after separation from service, and therefore has not established a continuity of symptomatology. As such, presumptive service connection for a lumbar spine disability is not warranted. However, the Board will determine if service connection is warranted on a direct basis. The Board finds that the evidence of record is against service connection for a lumbar spine disability. The Veteran and the Appellant are both competent and credible when reporting on the incidents in service and any symptoms the Veteran experienced. However, as laypersons, neither the Veteran nor the Appellant are competent to provide a nexus opinion because these issues are medically complex and require specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. Additionally, while both the October 2019 and September 2020 examinations provide negative nexus opinions, the September 2020 opinion is more probative than the October 2019 opinion because it properly addressed whether there is evidence in the record indicating a preexisting lumbar spine condition. As such, the September 2020 examiner’s opinion is the most probative evidence addressing whether there is a nexus between the Veteran’s lumbar spine disability and his active service. For the reasons set forth above, the Board concludes that the preponderance of the evidence is against finding the Veteran’s lumbar spine disability is related to his service. Accordingly, service connection for a lumbar spine disability is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to service connection for bilateral lower extremity radiculopathy (radiculopathy) is denied. A VA examiner reviewed the Veteran’s records and provided an opinion in October 2019. In that examination, the examiner opined that the Veteran’s radiculopathy, which is caused by pressure on the nerve root coming from the spine into the lower extremities, is caused by his degenerative arthritis of the spine, as evidenced by the MRI results in the Veteran’s records. The examiner also noted there was no evidence of complaint, diagnosis, or treatment for radiculopathy in service or within one year of service. Additionally, the first mention of potential radiculopathy was in 2006, nearly 40 years after separation from service. In its August 2020 remand, the Board found the October 2019 examiner’s determination that the Veteran’s radiculopathy was due to his lumbar spine disability to be adequate and did not ask the examiner to opine on whether his radiculopathy was directly connected to his service. The September 2020 examiner did opine that the Veteran’s lumbar spine disability was not related to his service and therefore did not opine on secondary service connection for his radiculopathy. The Board finds that the evidence of record is against service connection for bilateral lower extremity radiculopathy on a direct basis. Here, the Board finds that the October 2019 examiner’s opinion is the most probative evidence addressing whether there is a nexus between the Veteran’s bilateral lower extremity and his active service. As discussed above, the October 2019 VA examiner found the Veteran’s radiculopathy not to be related to service but rather to have been caused by his lumbar spine disability. As there is no competent and credible evidence relating the Veteran’s radiculopathy directly to service, service connection for radiculopathy on a direct basis must be denied. The Veteran’s radiculopathy was determined to be caused by, and thus secondary to, his lumbar spine disability. However, the Board finds, as discussed above, that his lumbar spine disability is not related to service. Thus, because he was not service connected for a lumbar spine disability, he cannot be service connected on a secondary basis for his radiculopathy, and service connection for bilateral lower extremity radiculopathy on a secondary basis must be denied as a matter of law. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310; see also Sabonis v. Brown, 6 Vet. App. 426 (1994). For the reasons set forth above, the Board concludes that service connection for bilateral lower extremity radiculopathy is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55-57. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gabrielle Ongies, 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.