Citation Nr: 22012355 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 18-43 238 DATE: March 3, 2022 ORDER Entitlement to service connection for lumbar spine osteoarthritis is granted. Entitlement to service connection for right lower extremity radiculopathy, secondary to service-connected lumbar spine osteoarthritis, on a causation basis, is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's lumbar spine osteoarthritis is related to service. 2. The Veteran's right lower extremity radiculopathy is caused by his now service-connected lumbar spine osteoarthritis. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for lumbar spine osteoarthritis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for right lower extremity radiculopathy, secondary to service-connected lumbar spine osteoarthritis on a causation basis, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1999 to March 2003 and from February 2004 to February 2005, including service in Southwest Asia. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), that in relevant part, denied service connection for lower back pain and radiculopathy/ sciatic nerve pain, right leg. The Veteran timely appealed. In February 2022, the Veteran testified before the undersigned Veterans Law Judge during a virtual hearing. A transcript of that hearing is not necessary given that the Board is granting the benefits sought in full. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a), which includes arthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Lumbar spine disability Service department records reflect that the Veteran's military occupational specialty (MOS) was as a heavy wheeled vehicle mechanic. Service treatment records (STRs) from June 2001 showed that the Veteran reported experiencing minor back pain over the past year. Three months ago, he lifted a 30 pound toolbox and started experiencing increased low back pain. July 2001 STRs referenced the Veteran having low back pain symptoms over the past year. He now had back pain radiating to his right hip. He had been performing swimming exercises over the past three weeks with minimal benefit. August 2001 STRs reported a six month history of low and middle back pain. Back pain classes had been partially effective at improving his symptoms. However, he now had exacerbated symptoms. Physical findings noted poor hamstring flexibility. The clinician assessed mechanical low back pain (MLBP) with tight hamstrings. In October 2002, the Veteran had a physical examination with normal findings for the spine. An accompanying medical history report showed that the Veteran reported recurrent back pain. The clinician noted a low back injury in Spring 2001 with a four month profile. In October 2002, the Veteran signed a statement agreeing that he did not desire a separation medical examination. The statement also acknowledged that his medical records would be reviewed by a physician and an examination would only be necessary at the physician's request. November 2002 STRs showed that the Veteran reported his overall health was worse since his last medical assessment. He cited back and knee injuries. The clinician noted recurrent episodes of back pain related to duties and physical therapy (PT). He also reported that the back examination was normal. August 2006 Reserve periodic health assessment records showed that the Veteran denied recurrent back pain as part of his medical history. Corresponding physical examination reflected that the Veteran's spine was clinically assessed as normal. July 2009 Reserve periodic health assessment records noted that the Veteran had a back injury from a motor vehicle accident (MVA). It occurred in May 2009 and affected the middle back. He completed two months of PT and resumed activities as tolerated without any formal restrictions. June 2012 Reserve records noted that the Veteran had a December 2011 fall injury with a thoracic spine (T6) fracture. He continued to have activity limitations and a pending profile to allow injury to fully heal. April 2018 private medical records included complaints about low back pain with radiation down the right leg. The Veteran stated that his low back pain began in 2001. The pain was primarily located in the low back and radiated outward with the right side being greater than the left side. The Veteran had tried a variety of conservative treatment modalities for pain relief. Physical examination showed limited lumbar spine motion and sensory disturbance affecting the right lower extremity. Imaging studies of the lumbar spine confirmed osteoarthritis at L4-L5 and L5-S1 levels. The physician assessed chronic flexion intolerant discogenic low back pain with a possible component of right lumbar radicular irritation, most likely L4. He issued a treatment plan. June 2018 private medical records confirmed diagnoses of chronic right-sided back pain and osteoarthritis of the spine with radiculopathy, lumbosacral region. In his July 2018 notice of disagreement (NOD), the Veteran reported that he had back pain since the original injury in service. It had not resolved. He also had treatment for radiculopathy, right leg. In his September 2018 substantive appeal, the Veteran asserted that his current back disability and radiculopathy, right leg was related to service. He injured his back in service and had back pain and problems ever since then. His back disability had worsened. During service, he was advised that there was no medical treatment available for his low back pain and that if it continued to be a problem, he would receive a medical separation. At separation, his concerns about back pain were dismissed. During reserve service, he withheld back pain complaints for fear of negative repercussions with his military career. He was ultimately unable to pass physical examinations for reserve service due to back and leg pain and had to retire from reserve service earlier than planned. He acknowledged sustaining accidents with back injuries following service but stated that those injures affected his upper back and fully healed. However, his low back pain had continued from service. For the following reasons, service connection for lumbar spine osteoarthritis is warranted. The disputed issue is whether there is a relationship between service and the currently diagnosed lumbar spine osteoarthritis. The Veteran is competent to report about his physical activities in service and history of back pain since it is readily observable. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). He reports sustaining a back injury during service. STRs clearly corroborate his report of back injury and recurrent back pain in service. After service, he explained why back pain complaints were not found within reserve medical records and affirmed that he in fact continued to experience low back pain from the initial military back injury. With this background, the Veteran's reports are entitled to probative weight in showing a continuity of symptomatology for lumbar spine osteoarthritis beginning in service. Then, the April 2018 private medical records implicitly support the Veteran's account of back pain starting in service and provide additional support for a continuity of symptomatology. There is no conflicting medical opinion. The Board could remand the claim for a VA examination and medical opinion, but such a request could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). For the above reasons, the evidence of a relationship to service for lumbar spine osteoarthritis is in a state of relative equipoise. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for lumbar spine osteoarthritis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Right lower extremity lumbar radiculopathy As relevant, April and June 2018 private medical records indicate that the Veteran was treated for lumbar spine with radiculopathy affecting his right leg. While there is no direct opinion that the Veteran's right lower extremity radiculopathy is caused by his now service-connected lumbar spine disability, the diagnoses noted above in the April 2018 and June 2018 private medical records in essence support the conclusion that he has current right lower extremity radiculopathy which is caused by his now service-connected lumbar spine disability. See also 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note 1. For the above reasons, the evidence is at least evenly balanced as to whether the Veteran's right lower extremity radiculopathy was caused by his service-connected lumbar spine disability. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right lower extremity radiculopathy, secondary to service-connected lumbar spine osteoarthritis, on a causation basis, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.