Citation Nr: A25035180 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210408-151359 DATE: April 16, 2025 ORDER New and relevant evidence having been received, readjudication of the previous denial for service connection for lumbar spondylosis (back disability), is warranted. Entitlement to service connection for a back disability is granted. Entitlement to service connection for radiculopathy of the right lower extremity is granted. Entitlement to service connection for radiculopathy of the left lower extremity is granted. Entitlement to service connection for cervical spondylosis is granted. Entitlement to service connection for radiculopathy of the right upper extremity is granted. Entitlement to service connection for radiculopathy of the left upper extremity is granted. Entitlement to service connection for headaches is granted. Entitlement to service connection for depression is granted. Entitlement to service connection for a traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. The Veteran's claim for service connection for a back disability was most recently denied in a July 2002 rating decision. The Veteran did not appeal this decision and it became final. 2. Since the July 2002 rating decision that most recently denied the Veteran's claim for service connection for a back disability, new evidence was received that is relevant to the claim for service connection. 3. The probative evidence of record establishes that the Veteran's back disability is etiologically related to service. 4. The probative evidence of record establishes that the Veteran's radiculopathy of the right lower extremity is etiologically related to service. 5. The probative evidence of record establishes that the Veteran's radiculopathy of the left lower extremity is etiologically related to service. 6. The probative evidence of record establishes that the Veteran's neck disability is etiologically related to service. 7. The probative evidence of record establishes that the Veteran's radiculopathy of the right upper extremity is etiologically related to service. 8. The probative evidence of record establishes that the Veteran's radiculopathy of the left upper extremity is etiologically related to service. 9. The probative evidence of record establishes that the Veteran's headaches are etiologically related to service. 10. The probative evidence of record establishes that the Veteran's depression is etiologically related to service. 11. The probative evidence of record does not establish that the Veteran has a diagnosis of a TBI. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim for service connection for a back disability have been met. 38 C.F.R. § 3.156 (d). 2. The criteria for service connection for a back disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for radiculopathy of the right lower extremity are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for radiculopathy of the left lower extremity are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for a neck disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for radiculopathy of the right upper extremity are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for service connection for radiculopathy of the left upper extremity are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 8. The criteria for service connection for headaches are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 9. The criteria for service connection for depression are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 10. The criteria for service connection for a TBI are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from September 1983 to August 1986. The Board is issuing two decisions concurrent with each other for Docket 211118-198215 (CUE) and Docket 210408-151359 (service connection issues). The Veteran's claims originate from several rating decisions issued by a Department of Veterans Affairs (VA) regional office (RO). A January 2021 rating decision addressed service connection for back, neck, radiculopathy, and headache disabilities. Another rating decision in January 2021 addressed service connection for a TBI. As for service connection for depression, an August 2020 rating decision denied the claim. The Veteran requested higher-level review (HLR) and a duty to assist error was identified. Thus, the RO ordered additional development and issued another rating decision in March 2021 that continued to deny the claim. The March 2021 decision is the AOJ decision on appeal for depression. In the April 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on November 2024 and a transcript is associated with the record. Therefore, the Board may only consider the evidence of record at the time of the January 2021 and March 2021 agency of original jurisdiction (AOJ) decisions on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Other pending claims The Veteran has two other claims pending before the Board. Docket 210816-179456 deals with service connection for obstructive sleep apnea and entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran withdrew his request for a hearing on February 6, 2025. A decision will be issued on this appeal at a later time. Docket 240103-405491 deals with service connection for a left hip disability. A hearing has not been held on this claim yet. New and Relevant evidence 1. New and relevant evidence having been received, readjudication of the previous denial for service connection for a back disability is warranted. VA will readjudicate a previously denied claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156 (d). New evidence is evidence not previously part of the actual record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501(a). The January 2021 rating decision readjudicated the Veteran's previously denied claims for service connection for the following disabilities: radiculopathy, neck, and headaches. However, it did not readjudicate the claim for service connection for a back disability. Thus, the Board must make a determination of whether to readjudicate the claim of service connection for a back disability. The Veteran's claim for service connection for a back disability was most recently addressed in July 2002 wherein the claim was denied because there was no evidence establishing the back disability was etiologically related to service nor that it was not a congenital defect. In July 2020, the Veteran again filed a claim for service connection for his back disability. A January 2021 rating decision denied the claim, confirming the reasoning for the prior denials. Along with the Veteran's most recent claim, the Veteran submitted a medical opinion on how his back disability was related to service. Given the above, the Board finds that the Veteran has submitted new and relevant evidence for his claim for service connection for a back disability, such that readjudication of the claim for service connection is warranted. Service Connection For the musculoskeletal and related injuries below, the Board concedes that a tree fell on the Veteran in 1985. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 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). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 2. Entitlement to service connection for a back disability is granted. 3. Entitlement to service connection for radiculopathy of the right lower extremity is granted. 4. Entitlement to service connection for radiculopathy of the left lower extremity is granted. The Veteran has a diagnosis of spondylosis and radiculopathy of the bilateral lower extremities. Further, the Veteran had an injury during service. Thus, the first two elements of service connection have been met. The Veteran's STRs note back pain after a tree fall and after a pushing injury. The Veteran had a diagnosis of spondylosis (or spondylolysis) during service, but the Veteran's claim for service connection had been denied in the past because his back strain resolved during service and his spondylosis was a defect that pre-existed service. In this regard, the Board notes that a veteran will be presumed sound when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service. 38 U.S.C. § 1111; 1132; 38 C.F.R. § 3.304 (b). When no preexisting disability is noted upon entry into service, a veteran is presumed to have been found sound upon entry. The presumption of soundness applies to congenital diseases that are not noted at entry. Quirin v. Shinseki, 22 Vet. App. 390, 396-97. For VA purposes, a congenital "defect" is defined as a structural or inherent abnormality or disability which is mostly stationary in nature and is generally incapable of improvement or deterioration. Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation and are not subject to service connection. 38 C.F.R. §§ 3.303 (c), 4.9; see Winn v. Brown, 8 Vet. App. 510, 516 (1996), appeal dismissed, 110 F.3d 56 (Fed. Cir. 1997). However, where a congenital or developmental defect is subject to superimposed disease or injury, service connection may be warranted for the resultant disability. See OGC Prec. 82-90 (July 18, 1990). There is no opinion on whether the Veteran's spondylosis (or spondylolysis) is a congenital defect; rather, it was made as a finding on the February 1989 rating decision that originally denied his claim. Given this, the Board finds the presumption of soundness attaches and the Veteran entered service without any pre-existing back disability. The Veteran submitted a private opinion from M.S., M.D., which opined that the Veteran's back disability is etiologically related to the in-service injury. Further, that the Veteran's radiculopathy is secondary to his back disability. See VBMS, document labeled Medical Treatment Record-Non-Government Facility, receipt date November 13, 2024. The Board gives the opinion great probative weight because it reviewed the Veteran's records, conducted an interview, and the clinician has the medical expertise to render such an opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The only VA opinion, from 1988, that addressed the Veteran's back disability did not find a current diagnosis. As the Veteran has a current diagnosis, that opinion is given little probative weight. Id. Thus, the criteria for service connection for a back disability and radiculopathy of the bilateral lower extremities are met. The claim is granted. There is no doubt to resolve. 5. Entitlement to service connection for a neck disability is granted. 6. Entitlement to service connection for radiculopathy of the right upper extremity is granted. 7. Entitlement to service connection for radiculopathy of the left lower extremity is granted. 8. Entitlement to service connection for headaches is granted. The Veteran has current diagnoses of a neck disability, radiculopathy of the bilateral upper extremities, and headaches. Further, the Veteran had an in-service incident as explained above. Thus, the first two elements of service connection are met. The Veteran submitted a private opinion from M.S., M.D., which opined that the Veteran's neck disability is etiologically related to the in-service injury. Further, that the Veteran's radiculopathy and headache disability is secondary to his neck disability. See VBMS, document labeled Medical Treatment Record-Non-Government Facility, receipt date November 13, 2024. The Board gives the opinion great probative weight because it reviewed the Veteran's records, conducted an interview, and the clinician has the medical expertise to render such an opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A VA clinician gave the opinion the Veteran's neck disability was not related to service because there was no injury that could cause the Veteran's symptoms. However, a tree fell on the Veteran's neck. Thus, the Board gives this opinion little probative weight because it did not consider whether a tree falling on him could cause a neck disability. Id. As for headaches, the clinician did not consider whether the Veteran's headaches were secondary to the neck disability. Thus, the Board gives the opinion little probative weight. Id. Thus, the criteria for service connection for a neck disability, radiculopathy of bilateral upper extremities, and headaches have been met. The claims are granted. There is no doubt to resolve. 9. Entitlement to service connection for depression is granted. The Veteran contends that he has depression that is etiologically related to his in-service injury. Alternatively, he contends that it is secondary to chronic pain from his service-connected disabilities. The Veteran has a diagnosis of depression. Further, as explained above, he is service-connected for back and neck disabilities. Thus, the first two elements of service connection are met. The Veteran submitted a medical opinion from J.P., Psy. D. The clinician gave the opinion that the Veteran's depression is directly related to service because of the incident during service. See VBMS, document labeled VA Examination, receipt date November 13, 2024. The Board also notes that while not directly cited by the clinician, along with the opinion, the Veteran submitted articles suggesting a relationship between chronic pain and depression. See VBMS, document labeled Medical Treatment Record-Non-Government Facility, receipt date November 13, 2024. Further, the March 2021 VA opinion found the Veteran's depression "is more likely than not ... related to his chronic pain and current life stressors" (i.e. lack of work due to physical injuries). Thus, the Board gives the opinions great probative weight because they reviewed the medical records and the clinicians have the medical expertise to render such decisions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the criteria for service connection for depression have been met. There is no doubt to resolve. 10. Entitlement to service connection for a TBI is denied. The Board finds the criteria for service connection for a TBI are not met because the Veteran does not have a current, confirmed diagnosis of a TBI. While it is conceded that an in-service injury occurred and that the Veteran lost consciousness, there was no diagnosis at the time of a TBI and there has not been a diagnosis since. The Veteran attended a VA examination for his TBI in November 2020. A clinician found the Veteran did not have a diagnosis of a TBI and rendered a negative opinion as follows: "Furthermore, injuries like the one he reported typically resolve quickly. Sequelae are unlikely to occur. If they do occur, they typically improve over time rather than appear spontaneously years afterward and progressively worsen. Such symptoms are not consistent with the natural history of a TBI." The Board gives the clinician's opinion great probative weight as it is consistent with the medical records and the clinician has the expertise to render such an opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent that other medical records contain a diagnoses of a TBI, the Board gives more probative weight to the clinician's opinion because the clinician reviewed the pertinent records and made an informed decision. The Board has considered the Veteran's lay opinion that he has a diagnosis of a TBI. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the Veteran is competent to report any symptoms he might experience. See Jandreau v. Nicholson, 492 F.3D. 1372, 1377 (Fed. Cir. 2007). However, the Board finds a medical diagnosis to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, while the Veteran is competent to describe his symptoms, he cannot, as a layperson, provide competent medical evidence establishing a diagnosis. Consequently, the Board gives more probative weight to the medical evidence. Thus, the criteria for service connection for a TBI have not been met. There is no doubt to resolve. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.