Citation Nr: 22017208 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 15-01 637 DATE: March 24, 2022 ORDER Entitlement to service connection for a low back disorder, characterized as lumbar degenerative joint disease, lumbar strain, and intervertebral disc syndrome (IVDS), is granted. Entitlement to service connection for right lower extremity radiculopathy, to include as due to a low back disorder, is granted. FINDINGS OF FACT 1. The Veteran's low back disorder, characterized as lumbar degenerative joint disease with intervertebral disc syndrome (IVDS), is related to his active-duty service. 2. The Veteran's right lower extremity radiculopathy, to include as due to a low back disorder, is related to his low back disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disorder, characterized as lumbar degenerative joint disease with intervertebral disc syndrome (IVDS), have been 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, to include as due to a low back disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active-duty service from October 1984 to March 1985. The Veteran had additional service in the U.S. Naval Reserve between March 1985 and July 1992. These matters return to the Board of Veterans' Appeals (Board) following the issuance of a November 2021 Board remand which instructed the Regional Office (RO) to undertake additional development. Service Connection The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability which 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 sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Certain chronic diseases, including arthritis, including osteoarthritis (degenerative joint disease), are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of 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). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology 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. 2014). 1. Entitlement to service connection for a low back disorder, characterized as lumbar degenerative joint disease, lumbar strain, and intervertebral disc syndrome (IVDS) 2. Entitlement to service connection for right lower extremity radiculopathy, to include as due to a low back disorder The Veteran is seeking service connection for a low back disorder, characterized as lumbar degenerative joint disease, lumbar strain, and intervertebral disc syndrome (IVDS). Additionally, the Veteran has been found to have right lower extremity radiculopathy, as such disorders can be associated with spinal disorders, the Board will consider whether service connection is separately warranted for right lower extremity radiculopathy. Specifically, the Veteran asserts that the claimed disorders are the result of an in-service motor vehicle accident where he was thrown from the car. After a review of the evidence of record, the Board finds that the Veteran's claims should be granted. At the outset, the Board notes that it indisputable that the Veteran had in-service injuries resulting from a motor vehicle accident. The Veteran's service records indicate that he was treated at a civilian hospital, later on he had sutures removed at a military facility. The Veteran's statements indicate that he was ejected from the vehicle during the accident and lost consciousness. The available service treatment records, including the Veteran's separation examination from February 1985, include no signs, symptoms, treatment, or diagnoses for any back or related disorder. The Veteran's post-service medical records do not show treatment for the claimed disorder until September 2010, which is the earliest year that such records are available in the Veteran's case file. The Veteran's medical records include his frequent complaints of low back pain. The Veteran was afforded a VA examination in November 2021 to address the nature and etiology of his claimed low back disorder. At the examination, the Veteran reported his 1985 motor vehicle accident at which time he was ejected from the vehicle and lost consciousness. The examiner endorsed diagnoses of lumbar strain, degenerative joint disease, IVDS, and right lower extremity radiculopathy. The examiner opined that the Veteran's low back disorder was less likely than not related to his active-duty service, including via aggravation during periods of ACDUTRA or INACDUTRA, and/or medication for another service-connected disability. The examiner did note the Veteran's in-service motor vehicle accident but decline to attribute his low back disability to it, instead the report indicated that other factors were more likely related such as obesity and aging. It is not apparent that the examiner considered the lay statements provide by the Veteran, his family members, and a fellow soldier regarding the symptoms the Veteran and others have attested to have observed since his 1985 motor vehicle accident. In contrast are the statements submitted by the Veteran, his wife and brothers, and a fellow soldier who served with the Veteran. Each statement includes descriptions of the Veteran's lingering symptoms from his injuries suffered during his motor vehicle accident, including low back pain and reduced mobility. The Board finds that the above discussed lay statements establish the nexus element. Specifically, the statements provided a history of the in-service injuries (along with some documentation in the Veteran's service treatment records), and the statements provided indicate that his symptoms have persisted in some fashion since the 1985 accident. As noted above, the Veteran's descriptions of his low back pain are symptoms capable of lay observation, which includes as to the date of onset. As the Veteran and those who have provided statements stated that he experienced these symptoms since his motor vehicle accident and has continued to experience such conditions since that time, and the Board has no reason to doubt his credibility, the nexus criterion is satisfied. Additionally, as noted above, the Veteran has been found to have right lower extremity radiculopathy that is related to his low back disorder. As service connection has been granted for a low back disorder at this time, service connection for right lower extremity radiculopathy should be similarly granted. In sum, and resolving all doubt in the Veteran's favor, the Board finds that his current low back and right lower extremity radiculopathy are a result of his 1985 in-service motor vehicle accident. Therefore, service connection for a low back disorder and right lower extremity radiculopathy are warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor