Citation Nr: 21030029 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-09 886 DATE: May 17, 2021 ORDER Entitlement to service connection for lumbosacral degenerative disc disease is granted. Entitlement to service connection for right lower extremity radiculopathy of the sciatic nerve associated with lumbosacral degenerative disc disease is granted. Entitlement to service connection for left lower extremity radiculopathy of the sciatic nerve associated with lumbosacral degenerative disc disease is granted. FINDINGS OF FACT 1. The Veteran's lumbosacral degenerative disc disease is related to an in-service injury and in-service treatment for back pain and radiculopathy. 2. The Veteran's right lower extremity radiculopathy of the sciatic nerve is related to an in-service back injury and in-service treatment for radiculopathy. 3. The Veteran's left lower extremity radiculopathy of the sciatic nerve is related to an in-service back injury and in-service treatment for radiculopathy. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lumbosacral degenerative disc disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for right lower extremity radiculopathy of the sciatic nerve associated with lumbosacral degenerative disc disease have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for left lower extremity radiculopathy of the sciatic nerve associated with lumbosacral degenerative disc disease have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1982 to May 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Veteran testified at a June 2020 Board virtual hearing; a transcript of the hearing is associated with the claims file. At the hearing, the Veteran waived AOJ consideration of additional evidence submitted after the statement of the case. 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). With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Lumbosacral degenerative disc disease The Veteran contends that service connection is warranted for lower back pain due to an in-service injury. The Board concludes that the Veteran has a current disability related to an in-service injury. 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). An October 2019 examination by a VA doctor, obtained by the Veteran, diagnosed lumbosacral degenerative disc disease. Although a November 2015 VA examination diagnosed the Veteran with lumbosacral strain, the Board resolves the reasonable doubt in favor of the Veteran, particularly because the October 2019 VA examination noted additional lumbosacral treatment, such as 2017 and 2018 surgeries, that took place after the November 2015 VA examination. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. An October 1990 neurology clinic service treatment record (STR) noted the Veteran's report of injuring his low back "while missing last 4 rungs on vertical ladder in July '90." An additional October 1990 neurology clinic STR indicated that a lumbosacral MRI showed "minimal disc bulg [sic] L5 S1 [without] herniation." A November 1990 physical therapy STR assessed low back pain. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The November 2015 VA examination weighs against the claim. This VA examination found that it would be "speculative" to link the Veteran's current back complaints with his service. To support this opinion, the VA examination cited the length of time between separation from service and treatment for a back condition as well as a May 1991 STR's finding that the Veteran's numbness had resolved. The VA examination did note that the Veteran "states different[ly]" regarding the STR finding that his numbness resolved. Weighing in favor of the claim is the October 2019 VA examination obtained by the Veteran, which found that the Veteran's in-service spinal injury (and lower extremity numbness) "more likely than not represent the initial presentation of what is now chronic lumbar sacral degenerative disc disease." As rationale, the VA examination indicated that "The location of the [2018] surgery at the L4-L5 and L5-S1 segments of the lumbar spine is consistent with the veteran's initial presentation, evaluation, and MRI. Once the spine is injured, further damage at that level and the adjacent level is more likely to occur over time." The October 2019 examination referenced the November 2015 VA examination's reliance on the STR that listed the in-service radiculopathy as "resolved" but found that determination inaccurate. As support, the October 2019 examination noted that "A radiculopathy is a pinched nerve root...A pinched nerve root in a flexible structure such as the spine can always be pinched again. Therefore while symptoms can temporarily resolve, this does not mean that they won't recur, calling into question any understanding that a radiculopathy is permanently resolved." Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current back disability is related to his in-service injury and treatment. Accordingly, after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for lumbosacral degenerative disc disease is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Bilateral lower extremity radiculopathy The Veteran contends that service connection is warranted for radiculopathy or neuropathy due to in-service injury. The Board concludes that the Veteran has bilateral lower extremity radiculopathy that began during active service. 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). Following the July 1990 ladder injury to his back, the Veteran was seen in service for complaints of numbness in the left lower extremity (August 1990 through March 1990 STRs) and right lower extremity (August and October 1990 STRs). Although a September 1990 consultation sheet listed a provisional diagnosis of peripheral neuropathy, the STRs that followed diagnosed bilateral radiculopathy. The November 2015 and October 2019 back examinations both diagnosed bilateral radiculopathy of the lower extremities affecting the sciatic nerves. Neither VA examination mentioned peripheral neuropathy. Accordingly, the Board finds that the Veteran has a current disability of bilateral lower extremity radiculopathy but not peripheral neuropathy. The October 2019 examination noted the report that "the radiculopathy never resolved, although its severity waxes and wanes." The examiner stated that these symptoms were present in service, as documented in STRs, and the Veteran was presenting with a consistent history and the same examination findings. The examiner therefore opined that " it is more likely than not that the original damage from the in-service injury is the same as that currently presenting." Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current lower extremity radiculopathy is related to his in-service injury. Accordingly, after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for right and left lower extremity radiculopathy of the sciatic nerve is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Ripplinger, 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.