Citation Nr: 22017164 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 13-09 872 DATE: March 24, 2022 ORDER Entitlement to service connection for spondylolisthesis of the lumbar spine is granted. REMANDED Entitlement to service connection for radiculopathy of the lower left extremity, to include as secondary to the Veteran's service-connected lumbar spine disability, is remanded. Entitlement to service connection for radiculopathy of the lower right extremity, to include as secondary to the Veteran's service-connected lumbar spine disability, is remanded. FINDING OF FACT The most probative evidence reflects that the Veteran's lumbar spine disability diagnosed as spondylolisthesis, had its onset during active duty. CONCLUSION OF LAW The criteria for entitlement to service connection for spondylolisthesis of the lumbar spine have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from September 1990 to September 1994. This matter comes to the Board of Veterans' Appeals (Board) from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). These appealed issues were previously remanded in July 2017, August 2019, October 2020, and September 2021 for additional development. 1. Entitlement to service connection for a low back disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d at 1372. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran asserts that service connection for a lumbar spine disability is warranted because he began experiencing problems with his lumbar spine during service, and such problems have continued to the present day. A condition precedent for establishing service connection is the presence of a current disability. The evidence of record includes two VA examinations, dated November 2010 and August 2012. These examinations diagnosed the Veteran with spondylolisthesis of the lumbar spine. Therefore, the Board finds that the requirement of a current disability has been satisfied. The second element to establish service connection is an in-service injury or event. Previous Board remands were necessary to ensure that every available resource had been checked to ensure that the Veteran's service medical records (STRs) were obtained. The Board also notes that, while the Veteran's personnel records were obtained after the most recent Board remand in September 2021, his STRs are still missing. The Veteran's treatment records from January 2010 note complaints of low back pain dating back to the in-service car accident. The record also shows that the Veteran also had back surgery in March 2010 due to his lumbar spine disability. The Board finds that there is sufficient medical evidence of record to demonstrate that the Veteran was involved in a car accident in August 1991, during his active-duty service. The Veteran has also consistently claimed that he fell in a ship after his motor vehicle accident. The Board finds that there is sufficient evidence of record to conclude that evidence relating to the second element necessary for service connection has been met. The evidence relating to the final nexus element for service connection is tenuous. A November 2010 VA examiner concluded that the Veteran's lumbar spine disability was less likely than not due to the Veteran's in-service injury, and more likely than not due to a degenerative process. The examiner noted that there was no evidence of in-service medical records noting an in-service back injury. Similarly, an August 2012 VA examiner concluded that the current lumbar spine disability was more likely than not due to the Veteran's lumbar spine surgery from March 2010. The Board finds that these opinions are inadequate. The November 2010 VA examiner did not address the fact that the Veteran's STRs had not been fully obtained and, in fact, are still incomplete. The August 2012 VA examiner provided a clearly erroneous conclusion implying that the current disability is due to a surgery of the lumbar spine, ignoring the cause of the surgery, as the Veteran had a history of complaints of back pain prior to the March 2010 surgery. As the Veteran provided statements explaining the onset of the injury and the continuity of his symptoms leading up to the present. The Board find the Veteran particularly credible given that his lay statements are supported by his treatment records. Therefore, giving every reasonable doubt to the Veteran with respect to this claim, the Board finds that the Veteran's lumbar spine disability is more likely than not originated during his active duty service. Therefore, service connection for spondylolisthesis of the lumbar spine is warranted. REASONS FOR REMAND 1. Entitlement to service connection for radiculopathy of the lower left extremity, as secondary to the Veteran's service-connected lumbar spine disability, is remanded. 2. Entitlement to service connection for radiculopathy of the lower right extremity, as secondary to the Veteran's service-connected lumbar spine disability, is remanded. The Veteran claims that he is entitled to service connection for radiculopathy of the bilateral lower extremities on a secondary to his lumbar spine disability. While the Board sincerely regrets further delay in this matter, additional development is required before the Veteran's claim may be adjudicated on the merits. The Veteran was not afforded a VA examination for these claimed disabilities. However, the Veteran was afforded two VA examinations for the Veteran's lumbar spine disability in November 2010 and August 2012. These examinations did not show a diagnosis radiculopathy for bilateral lower extremities. However, the Veteran's treatment records confirm complaints of bilateral lower extremity weakness. As the Veteran's lay statements, and treatment records indicate that the Veteran may have a disability that could be related to a service-connected disability, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature, etiology, and severity for his claimed radiculopathy of the bilateral lower extremities. The matters are REMANDED for the following action: 1. The Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed radiculopathy of the bilateral lower extremities. Any and all studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed. The claims folder, including a copy of this remand, the Veteran's lay statements, and medical records, should be made available and be reviewed by the examiner. Following a complete review of the record, the examiner is asked to: a. Confirm any current diagnosis as to the Veteran's claimed radiculopathy of the bilateral lower extremities. b. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed radiculopathy of the bilateral lower extremities was caused or aggravated by a service-connected disability. c. The examiner is also asked to specifically address the Veteran's lay statements regarding the onset and symptoms associated with the Veteran's claimed radiculopathy of the bilateral lower extremities. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 2. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran with a copy of the readjudication and afford him an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.