INTERVERTEBRAL DISC SYNDROME

Summary

The veteran, who served in the U.S. Army from September 1975 to September 1984, appealed a December 2020 rating decision regarding his claims for service connection for a lower back condition and bilateral lower extremity lumbar radiculopathy. The veteran sought to establish these conditions as secondary to his already service-connected knee and foot conditions. The Board found that the veteran's claims were implicitly readjudicated on the merits by the RO, granting the Board jurisdiction. The primary issue was establishing a medical nexus between the current back and radiculopathy conditions and the service-connected knee and foot disabilities. A November 2003 VA examination was found to have minimal probative value as it did not address aggravation from the knee condition and the foot condition was not yet service-connected at that time. However, a November 2020 private medical opinion from Dr. J.W.E. persuasively linked the veteran's back condition to his service-connected knee and foot issues, concluding it was more likely than not that the back condition resulted from abnormal biomechanical stressors caused by the service-connected lower extremity conditions. This opinion outweighed the negative VA opinion. The Board found the evidence supported secondary service connection for the lower back condition, including lumbosacral strain, lumbar spinal fusion, and degenerative arthritis, and for the bilateral lower extremity lumbar radiculopathy. The Board resolved all reasonable doubt in the veteran's favor, granting both claims.

Rationale

Service connection granted on secondary basis.; Private medical opinion linked back condition to service-connected knee/foot issues.; Benefit of the doubt conferred in veteran's favor.

Full Decision Text

Citation Nr: A24022983
Decision Date: 05/03/24	Archive Date: 05/03/24

DOCKET NO. 201231-127708
DATE: May 3, 2024

ORDER

Entitlement to service connection for a lower back condition, to include lumbosacral strain, lumbar spinal fusion, and degenerative arthritis of the lumbar spine, as secondary to service-connected knee and foot conditions, is granted.

Entitlement to service connection for bilateral lower extremity lumbar radiculopathy, as secondary to a service-connected lower back condition, is granted.

FINDINGS OF FACT

1. The Veteran's lower back condition is caused by his service-connected knee and foot conditions.

2. The Veteran's bilateral lower extremity lumbar radiculopathy is caused by his service-connected lower back condition.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a lower back condition, to include lumbosacral strain, lumbar spinal fusion, and degenerative arthritis of the lumbar spine, as secondary to service-connected knee and foot conditions, have been met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

2. The criteria for entitlement to service connection for bilateral lower extremity lumbar radiculopathy, as secondary to service-connected lower back condition, have been met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Army from September 1975 to September 1984.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2020 rating decision by a Department of Veterans Affairs (VA) regional office (RO).  The Veteran filed a VA Form 20-0995 for a supplemental claim in December 2020 after an October 2009 rating decision.  The RO issued a rating decision in December 2020, which did not find sufficient new and relevant evidence to reconsider the Veteran's claims.  However, the RO went on to discuss the Veteran's claim on the merits.  Therefore, the Board finds that the RO implicitly found sufficient new and relevant evidence to readjudicate the Veteran's claims.

The Veteran timely appealed the rating decision by submitting a VA Form 10182 and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ) under the Veterans Appeals Improvement Modernization Act of 2017 (AMA).  Under direct review, the Board cannot hold a hearing or accept additional evidence into the record.  38 C.F.R. § 20.301 (2019).  Therefore, the Board will consider the evidence of record as of December 16, 2020, the date of the notification letter for the December 2020 rating decision.  Id.

As an initial matter, the Board notes that the Veteran styled the issue on appeal as "lower back pain with radiculopathy" on his December 2020 VA Form 20-0995, and the RO has the issue listed as such on the December 2020 rating decision.  Service connection may be considered in the first instance when the record shows a condition is reasonably raised during the appeal of another claim.  See Grimes v. McDonough, 34 Vet. App. 84 (2021); see also Bernard v. Brown, 4 Vet. App. 384, 392 (1993) (holding that, where the Board properly has appellate jurisdiction to review a claim, it follows that the Board is authorized to decide all questions presented on the record before it that are necessary to its decision on that matter).  A November 2020 private medical opinion reflects that the Veteran's bilateral lower extremity lumbar radiculopathy is related the Veteran's back condition.  Accordingly, the Board finds that a claim of service connection for bilateral lower extremity lumbar radiculopathy has been raised, and the Board has jurisdiction to review the claim.

Evidence was added to the claims file during a period of time when new evidence was not allowed.  As the Board is deciding the claim of entitlement to service connection for a back condition, it may not consider this evidence in its decision.  38 C.F.R. § 20.300.  However, since the Board is herein granting the Veteran's claim, there is no prejudice to the Veteran.

1. Entitlement to service connection for a lower back condition, to include lumbosacral strain, lumbar spinal fusion, and degenerative arthritis of the lumbar spine, as secondary to service
 service connection for bilateral lower extremity lumbar radiculopathy has been raised, and the Board has jurisdiction to review the claim.

Evidence was added to the claims file during a period of time when new evidence was not allowed.  As the Board is deciding the claim of entitlement to service connection for a back condition, it may not consider this evidence in its decision.  38 C.F.R. § 20.300.  However, since the Board is herein granting the Veteran's claim, there is no prejudice to the Veteran.

1. Entitlement to service connection for a lower back condition, to include lumbosacral strain, lumbar spinal fusion, and degenerative arthritis of the lumbar spine, as secondary to service-connected knee and foot conditions, is granted.

2. Entitlement to service connection for bilateral lower extremity lumbar radiculopathy, secondary to service-connected lower back condition, is granted.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 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 also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability.  38 C.F.R. § 3.310(a).  Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995).  In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

As will be addressed below, the Board finds that service connection for lower back and radiculopathy conditions is warranted on a secondary basis so the Board will not address direct service connection.

Favorable findings from the December 2020 rating decision include diagnoses of lumbosacral strain, lumbar spinal fusion, degenerative arthritis of the lumbar spine, and lumbar radiculopathy involving right and left sciatic nerves, as well as the primary disabilities, knee and foot conditions, being service connected.  Therefore, the Board finds that the first and second elements of service connection are satisfied.  Wallin, 11 Vet. App. at 512. 

The remaining question is whether there is a medical nexus between the Veteran's currently diagnosed back condition and his service-connected knee and foot conditions.  As to this matter, the evidence persuasively weighs in favor of nexus.

The Veteran underwent a VA examination in November 2003, in which the examiner diagnosed the Veteran with lumbar spine pain with some radiation into the lower extremities.  She concluded that the spinal stenosis that led to the surgeries was not caused by the Veteran's service-connected foot conditions because the back problems were basically a disease of attrition from developing bone spurs, ligament thickening, and possible disc bulging.  The examiner failed to address whether the Veteran's back conditions were aggravated from his service-connected foot condition.  Further, because the Veteran's knee conditions were not service connected at that time, the examiner did not comment on causation or aggravation from that condition.  For these reasons, the Board finds the November 2003 VA opinion to be of minimal probative value as to secondary service connection.  

In support of a nexus is a November 2020 private opinion from Dr. J.W.E. that was associated with the Veteran's claim file in December 202
 the Veteran's service-connected foot conditions because the back problems were basically a disease of attrition from developing bone spurs, ligament thickening, and possible disc bulging.  The examiner failed to address whether the Veteran's back conditions were aggravated from his service-connected foot condition.  Further, because the Veteran's knee conditions were not service connected at that time, the examiner did not comment on causation or aggravation from that condition.  For these reasons, the Board finds the November 2003 VA opinion to be of minimal probative value as to secondary service connection.  

In support of a nexus is a November 2020 private opinion from Dr. J.W.E. that was associated with the Veteran's claim file in December 2020.  Dr. J.W.E. based his opinion on an examination of the Veteran, as well as a review of the record.  He opined that it was more likely than not the Veteran's back condition is related to the occurrence of injury while serving.  He also noted that the Veteran had an antalgic gait from bilateral knee and foot conditions that has caused abnormal biomechanical stressors in the Veteran's spine, which resulted in more stressors and abnormal strains on the vertebrae and disc structures in the lumbar spine.  This, the examiner concluded, contributed to lumbosacral strain, degenerative arthritis, and subsequent deranged discs, as well as impingement of the bilateral L5-S1 spinal nerves down the legs. 

The Board finds that the favorable evidence of record supports service connection.  After careful review of the record, the Board finds that the positive evidence from the November 2020 opinion outweighs the negative evidence with respect to whether the Veteran's lower back condition was caused by the Veteran's service-connected knee and foot conditions.  There is no adequate evidence to the contrary.  The benefit of the doubt will be conferred in the Veteran's favor.

The Board further finds that service connection for bilateral lower extremity lumbar radiculopathy is warranted.  As discussed above, Dr. J.W.E. found that the Veteran had impingement of the bilateral L5-S1 spinal nerves down the legs, and the Veteran has been diagnosed with lumbar radiculopathy of the bilateral sciatic nerve, and the Board has herein granted service connection for a back condition.  Wallin, 11 Vet. App. at 512. 

Based on the above, the Board finds that the evidence persuasively supports the Veteran's claims, and the Board resolves all reasonable doubt in favor of the Veteran.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, service connection for a lower back condition to include lumbosacral strain, lumbar spinal fusion, and degenerative arthritis of the lumbar spine; and bilateral lower extremity lumbar radiculopathy will be granted.

 

 

A. S. CARACCIOLO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. L. Park, 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.