INTERVERTEBRAL DISC SYNDROME

LAURA E. COLLINS · 2025 · Case ID: 25007909

MIXED

Summary

The veteran, who served from July 1971 to July 1975, appeals the denial of service connection for bilateral sciatica and the initial claim for back disability. The Board found the evidence in approximate balance regarding the veteran's back disability, applying the benefit of the doubt doctrine to grant service connection. The veteran testified to in-service activities like loading ammunition and driving heavy vehicles, which he believes caused his current back issues, and stated he has a high pain tolerance, explaining his lack of in-service treatment. While a VA examiner initially provided a negative nexus opinion, an addendum conceded that the veteran's "in-service mechanical strain align with how degenerative conditions can develop." The Board found this, combined with the veteran's credible testimony about pain tolerance, sufficient to establish nexus for the back condition. For sciatica, the Board granted service connection for the right lower extremity, finding it secondary to the service-connected back disability based on a VA examination and the veteran's testimony. However, service connection for left lower extremity sciatica was denied due to insufficient evidence of a current diagnosis or functional impairment, despite some VA treatment records noting "low back pain with sciatica." The Board found no competent evidence of left leg sciatica, and the veteran's testimony did not specifically mention the left leg. The PACT Act's provisions for toxic exposure risk activity were considered but deemed inapplicable due to the lack of evidence for left leg sciatica.

Rationale

Veteran testimony regarding in-service activities and pain; Credible testimony explaining lack of in-service treatment; Conflicting VA nexus opinions (negative from examiner, conceded strain alignment from addendum); Approximate balance of evidence applied benefit of doubt doctrine

Special Benefit

NO SPECIAL BENEFIT

Docket No.

18-43 786

Full Decision Text

Citation Nr: 25007909
Decision Date: 06/13/25 Archive Date: 06/13/25

DOCKET NO. 18-43 786
DATE: June 13, 2025

ORDER

Entitlement to service connection for back disability is granted.

Entitlement to service connection for sciatica of the right lower extremity is granted.

Entitlement to service connection for sciatica of the left lower extremity is denied.

FINDINGS OF FACTS

1. The competing lay and medical evidence is in approximate balance as to whether the Veteran's back disability is etiologically related to his military service. Thus, the Board resolves the benefit of the doubt in favor of the appellant.

2. The Veteran's sciatica of the right lower extremity is secondary to his back disability.

3. The evidence of record persuasively weighs against finding that the Veteran has had sciatica of the left lower extremity at any time during or approximate to the pendency of the claim.

CONCLUSIONS OF LAW

1. The criteria for service connection for back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for sciatica of the right lower extremity due to service-connected back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for service connection for sciatica of the left lower extremity due to service-connected back disability are not 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 from July 1971 to July 1975.

The claims come to the Board of Veterans' Appeals (Board) from a rating decision issued in August 2015. The Veteran filed a notice of disagreement in September 2015, which resulted in a July 2018 statement of the case (SOC). Thereafter, the Veteran filed a substantive appeal in August 2018 and requested a hearing. A hearing occurred in December 2021 and the transcript is of record.

In May 2022, the Board denied the claims for service connection for sciatica of the bilateral lower extremities. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court), which vacated the denial and remanded the claims by way of a Joint Motion for Partial Remand (JMPR). In the JMPR, the parties agreed that the Board should have considered a claim for service connection for back disability, as well as the claims related to the bilateral lower extremity sciatica. Accordingly, the claims were returned to the Board. In September 2023, the Board remanded the claims to the Agency of Original Jurisdiction (AOJ) for further development. In March 2024, the Veteran responded to a clarification letter and requested another hearing. The hearing occurred in September 2024 and the transcript is of record.

Service Connection

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In the alternative, service connection may be granted on a secondary basis for a disability that is due to or the result of a service-connected condition. 38 C.F.R. § 3.310 (a).

1. Entitlement to service connection for back disability is granted.

The Veteran is seeking service connection for back disability.

Review of the record reflects that the Veteran has current diagnoses of Degenerative disc disease other than intervertebral disc syndrome (IVDS), Intervertebral disc syndrome, lumbar disc herniation, Paget's disease, and osteoarthritis of the spine. See October 2023 Back Examination. Thus, the current disability element of a service connection claim is established.

The Veteran's service treatment records (STRs) do not reflect diagnosis or treatment for back disability. However, the Veteran testified that he believes that his current back disability is related to the daily activities in the military, such as loading and unloading ammunitions and canister, and driving semi-tractor trailers and forklift with no stability or back support. See September 2024 hearing transcript at 4. He indicated that his pain started in service. See December 2021 hearing transcript at 27. However, he reported that he did not seek treatment in service because he has a high tolerance for pain. See September 2024 hearing transcript at 5. The Veteran further testified that he was told by doctors that his current back disability is related to repetitive motion in service. See hearing transcript at 6. The Board finds the Veteran's statement credible and probative in establishing the in-service incident element of a service connection claim.

As to the nexus element, reviewing the evidence in light most favorable to the Veteran and affording him the benefit of the doubt, the Board finds that the evidence is in approximate balance.

To that end, in October 2023, the Veteran underwent a VA evaluation, where the examiner concluded that it is less likely than not that his back disability is related to his military service. The examiner reasoned

While his claims of lumbar overuse due to his MOS, which includes working as a Munitions Specialist and Explosive Operator anatomically makes sense in theory, the degree of injury and diagnoses made currently in his low back hold the expectation that he would have sought medical care sooner than 30 years after his enlistment if indeed his lumbar overuse caused his current conditions. Without chronicity during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology.

However, the Veteran credibly testified that he did not seek treatment for his back disability because he has a high tolerance for pain. Because the October 2023 medical examiner did not consider the Veteran's reason for not seeking treatment earlier, the Board sought an addendum opinion. In February 2025, an addendum opinion was obtained. Although the examiner provided a negative nexus opinion, in the rationale provided, she conceded that the Veteran's "in-service mechanical strain align with how degenerative conditions can develop." The examiner's negative opinion primarily relied on the lack of treatment in service and post service. The examiner further reasoned that "the absence of documented symptoms or treatment during service, the lengthy post-service gap, and the presence of pre- and post-service contributing factors make a service connection less likely." Thus, there are positive and negative evidence as to whether the Veteran's current back disability is the type of condition that could be caused by the Veteran's activities in the military. Under these circumstances, the Board resolves reasonable doubt in the Veteran's favor and find that the nexus element of a service connection claim is established.

Based on the foregoing, the Board finds that the competent and credible evidence is approximately balanced as to whether service connection for back disability is warranted. The benefit of the doubt doctrine applies. 38?U.S.C. §?5107(b), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The claim is granted.

2. Entitlement to service connection for sciatica of the right lower extremity is granted.

3. Entitlement to service connection for sciatica of the left lower extremity is denied.

The Veteran contends that service connection for sciatica is warranted. The Veteran's claim was for "sciatica" without specifying right or left legs; viewing the claim in the light most favorable to the Veteran, over the course of the appeal VA has interpreted this broadly to include both legs.

The appeal period in this case started on April 2015. As such, to satisfy the current disability element of either a direct or secondary service connection claim, the evidence must show that the Veteran had sciatica of the left lower extremity either since April 2015 or approximate to that time. The Board concludes that the Veteran did not have sciatica of the left lower extremity at any time during the pendency of the claims or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

VA treatment records reflect notations of
legs.

VA treatment records reflect notations of "low back pain with sciatica" during the appeal period. However, they also indicate "low back pain without significant radicular component." See e.g., July 2019 VA Orthopedic Consult Note. The VA treatment records do not indicate whether this applies to both legs or just one leg. At his hearing, the Veteran testified to having numbness and drop foot in the right leg. He did not specifically mention the left leg.

The Veteran underwent a VA examination in October 2023, where he was diagnosed with right leg radiculopathy affecting the sciatic nerve that is secondary to his back disability. Symptoms of the right leg were severe constant pain, and severe paresthesias and/or dysesthesias in the right leg. A current disability of right leg sciatica is established, and there is no evidence to contradict the opinion that it is related to the back disability. Considering the grant herein, the Board finds that the Veteran's right lower extremity sciatica is secondary to his now service-connected back disability. To this extent, the claim is granted.

However, the examination report does not reflect diagnosis of sciatica of the left lower extremity. In fact, the Veteran reported that his low back pain radiates to the right leg and not the left. The examination showed normal muscle strength and reflexes in the left leg. There were no symptoms of constant or intermittent pain. Nor was there paresthesias and/or dysesthesias or numbness. Thus, the Board finds no competent evidence that establishes a diagnosis of sciatica of the left lower extremity.

The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding the Court erred as matter of law in finding veteran's pain alone, absent specific diagnosis or otherwise identified disease or injury, could not constitute a disability under 38 U.S.C. § 1110). However, the Veteran notably has not made any specific contentions regarding how any left leg sciatica symptoms have resulted in specific functional impairment of earning capacity. Cf. Mitchell v. Shinseki, 25 Vet. App. 32, 38, 43 (2011) (stating, "pain itself does not rise to the level of functional loss;" "pain must affect some aspect of the normal working movements of the body...in order to constitute functional loss;" and "painful motion alone is not [the equivalent of] limited motion" (internal quotation marks omitted)); Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (disability occurs "if a veteran cannot perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance" (citing 38 C.F.R. § 4.40 )); Read v. Shinseki, 651 F.3d 1296, 1301 (Fed. Cir. 2011) ("disability" in VA regulations is "generally associated with the veteran's inability to perform certain acts"). The Federal Circuit clarified:

We do not hold that a veteran could demonstrate service connection simply by asserting subjective pain-to establish a disability, the veteran's pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that her pain reaches the level of a functional impairment of earning capacity. The policy underlying veterans compensation - to compensate veterans whose ability to earn a living is impaired as a result of their military service - supports the holding we reach today.

Saunders at 1367. Here, there is no evidence of record that any current symptoms of the claimed left lower extremity sciatica have resulted in functional impairment in earning capacity. The Board finds that the presence of a current disability of left leg sciatica is not established under Saunders.

The presence of a current disability is the cornerstone of any service connection claim. Service connection is not warranted when there is no current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Current means near the time a claim is filed or at any
. The policy underlying veterans compensation - to compensate veterans whose ability to earn a living is impaired as a result of their military service - supports the holding we reach today.

The presence of a current disability is the cornerstone of any service connection claim. Service connection is not warranted when there is no current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Current means near the time a claim is filed or at any time during its pendency. Romanowsky, 26 Vet. App. 289; McClain, 21 Vet. App. 319. In this case, because the evidence does not establish a current disability, service connection must be denied, and the Board need not discuss the in-service incident or nexus elements of a service connection claim.

Finally, on August 10, 2022, the President of the United States signed into law the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act). 38 U.S.C. § 1168 (a) requires a medical nexus opinion and examination if a Veteran submits a claim for compensation for a service-connected disability under section 1110 with evidence of a disability and evidence of participation in toxic exposure risk activity (TERA) during service, and such evidence is not sufficient to establish a service connection for the disability. In this case, the Veteran is presumed to have been exposed to herbicide agent. However, there is no evidence of a current disability of sciatica of the left lower extremity. Thus, a remand to obtain a TERA examination or opinion is not warranted.

Based on the foregoing, the Board finds that the competent and credible evidence is neither evenly nor approximately balanced as to whether service connection for sciatica of the left lower extremity is warranted. The benefit of the doubt doctrine does not apply. 38?U.S.C. §?5107(b), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The claim for left lower extremity sciatica is denied.

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The Board also finds that the competent and credible evidence persuasively weighs in favor of finding the right leg sciatica is secondary to the back disability. Service connection is granted for right lower extremity sciatica.

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board S. Solomon

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.

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