DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

Summary

The veteran, who served in the Army from January 1996 to January 1999 and the Coast Guard from October 2002 to November 2005, appeals the denial of service connection for L4-L5 and L5-S1 degenerative disc disease (DDD) and right L4-5 disc herniation with radiculopathy. The veteran claimed the condition was related to service and secondary to his service-connected right knee patellofemoral pain syndrome (PFPS) with osteoarthritis, right ankle sprain with residual instability, and right foot plantar fasciitis. While the veteran's service treatment records were silent for back complaints, a March 1996 record noted a fall from a 10-foot height. Post-service records from 2013 onwards documented treatment for back issues, including diagnoses of DDD and radiculopathy. A February 2019 VA examination opined the condition was less likely than not related to service, citing the lack of in-service complaints. However, the Board found this opinion inadequate for failing to consider the veteran's lay statements about the onset and continuity of symptoms since the 1996 fall, and for not addressing aggravation. A February 2019 private opinion from H.C. was found more probative, linking the lumbar degeneration and radiculopathy to service and the service-connected knee, ankle, and foot conditions, citing plausible mechanisms of injury and medical literature. The August 2020 VA examination was also found partially inadequate for similar reasons and lack of aggravation opinions. Resolving doubt in the veteran's favor, the Board granted service connection for the lumbar spine disability on both direct and secondary bases.

Rationale

In-service injury element met due to fall and physically demanding MOS.; Private medical opinion found probative for nexus to service and service-connected conditions.; VA opinions found inadequate for failing to consider lay statements, continuity, and aggravation.; Resolved doubt in veteran's favor.

Full Decision Text

Citation Nr: A24061195
Decision Date: 09/26/24	Archive Date: 09/26/24

DOCKET NO. 210813-178573
DATE: September 26, 2024

ORDER

Service connection for L4-L5 and L5-S1 degenerative disc disease (DDD) and right L4-5 disc herniation with radiculopathy is granted.

FINDING OF FACT

Resolving any doubt in the Veteran's favor, his lumbar spine DDD and disc herniation with radiculopathy is related to active service, and is secondary to his service-connected right knee patellofemoral pain syndrome (PFPS) with osteoarthritis, right ankle sprain with residual instability, and right foot plantar fasciitis.

CONCLUSION OF LAW

The criteria for service connection for L4-L5 and L5-S1 DDD and right L4-5 disc herniation with radiculopathy have been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from January 1996 to January 1999, and in the United States Coast Guard from October 2002 to November 2005.

In April 2020, the Veteran submitted a VA Form 21-526EZ for service connection for L4-L5 and L5-S1 DDD and right L4-5 disc herniation with radiculopathy.  The agency of original jurisdiction (AOJ) construed it as a supplemental claim for service connection for lower back condition most recently addressed in a July 2019 rating decision.  In August 2020, the AOJ issued the supplemental claim decision on appeal, which implicitly found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision.

In the August 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.  Therefore, the Board may only consider the evidence of record at the time of the August 2020 AOJ decision on appeal.  38 C.F.R. § 20.301.  Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board.  38 C.F.R. §§ 20.300, 20.301, 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 claim, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision.

Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service.  38 U.S.C. §§ 1110, 1131; 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).

Arthritis, a chronic disease, will be presumed related to service, absent an intercurrent cause, if it is shown as chronic in service; or, if it manifested to a compensable degree within a presumptive period following separation from service; or, if it was noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability
 was noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection).

1. Service connection for L4-L5 and L5-S1 degenerative disc disease (DDD) and right L4-5 disc herniation with radiculopathy is granted.

The Veteran contends that his lumbar spine disability with radiculopathy is related to his active service, to include as secondary to his service-connected right knee PFPS with osteoarthritis, right ankle sprain with residual instability, and/or right foot plantar fasciitis.  See June 2017 Notice of Disagreement (NOD); April 2020 VA Form 21-526EZ.

The AOJ found that the Veteran has been diagnosed with a current disability based on his VA and private treatment records.  See August 2020 rating decision; 38 C.F.R. § 3.104(c).  His 2017 private record shows diagnoses of L4-L5 and L5-S1 DDD and right L4-5 disc herniation with radiculopathy.  His August 2020 VA examination shows current diagnoses of lumbosacral strain, degenerative arthritis of the spine, intervertebral disc syndrome (IVDS), and lumbar radiculopathy.  Thus, the current disability element is met.

The question for the Board is whether the Veteran's lumbar spine disability with radiculopathy began during service or is at least as likely as not related to service, or is otherwise caused or aggravated by his service-connected right knee, ankle, and/or foot disabilities.

The Veteran's DD Form 214 for the Army service shows his military occupational specialty (MOS) was heavy anti-armor weapon infantry.  His DD Form 214 for the Coast Guard service shows his MOS as "NA [not applicable]"; his training records show had boatswain mate training.

The Veteran's service treatment records are silent for any complaints or treatment for a back condition.  A March 1996 record shows the Veteran fell from a 10-foot height.

After service, his medical records begin to show treatment for back issues in 2013.  Notably, a June 2013 private record noted the Veteran had lumbar intervertebral disc (IVD) without myelopathy; lumbar subluxation; lumbago; thoracic subluxation; and muscle spasm.  A February 2016 VA record noted lumbar spondylosis without myelopathy and lumbar dysfunction.  A May 2016 private MRI showed loss of disc height at L4-5 with collapse of the disc space and a small eccentric herniation, and chronic loss of disc height at L5-S1 with a spur and traction disc protrusion.  A March 2017 private record noted L4-5 and L5-S1 DDD and right L4-5 disc herniation with radiculopathy.  In a February 2019 private record, the Veteran reported pain in ball of foot has caused him to walk with a limp secondary to severity of pain.  An April 2019 private MRI showed large L-L3 disc extrusion with mass effect on the left L3 nerve root, and possible right L5 and left S1 radiculopathy.

The Veteran underwent a VA contract examination in February 2019.  He was diagnosed with lumbosacral strain, degenerative arthritis of the spine, IVDS, and bilateral lower extremity radiculopathy.  He reported experiencing a back strain injury in 1996 after falling 10 feet onto his tailbone; following that injury, he experienced severe back pain with radiations and burning pain to his right lower extremity.  He stated his back condition has been ongoing ever since
 with a limp secondary to severity of pain.  An April 2019 private MRI showed large L-L3 disc extrusion with mass effect on the left L3 nerve root, and possible right L5 and left S1 radiculopathy.

The Veteran underwent a VA contract examination in February 2019.  He was diagnosed with lumbosacral strain, degenerative arthritis of the spine, IVDS, and bilateral lower extremity radiculopathy.  He reported experiencing a back strain injury in 1996 after falling 10 feet onto his tailbone; following that injury, he experienced severe back pain with radiations and burning pain to his right lower extremity.  He stated his back condition has been ongoing ever since.  The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  He noted that the Veteran's service treatment records are silent for any injury or lower back condition incurred in service.

In an April 2020 private opinion, clinician H.C. opined that it is more likely than not that the Veteran's lumbar degeneration with disc herniation and lumbar radiculopathy are related to his service, and are caused or aggravated by his service-connected right knee, right ankle, and/or right foot disabilities.  She noted she has reviewed the Veteran's medical history.  She stated that the Veteran denied a history of back conditions upon enlistment to service, and that his MOSs of infantryman and boatswain mate required very physically demanding tasks.  She noted the Veteran admitted his boatswain mate job involved picking up heavy tow lines, lifting and carry heavy items, bending over for extended periods of time in small and tight compartments, lowering and lifting of small boats, and standing for extended periods times.  She stated that the Veteran also had a fall injury in 1996 and sustained several injuries as a result of the fall.  She noted that the Veteran has a very plausible mechanism of spinal injury with daily repeated exposures to frequent excessive stressors on his axial spine in conjunction with a significant fall, which likely caused repeated microtrauma to his spine leading to his chronic low back pain and his lumbar spondylosis with disc herniations.

She stated that his service-connect right knee PFPS, right ankle sprain, and right foot plantar fasciitis have likely exacerbated his underlying lumbar condition.  Citing to a medical treatise, she noted that there is closed kinetic relationship between the human knee and low back spine, and that knee dysfunction and pain may result in walking difficulties and more stress on other joints of lower limbs and low back spine.  Citing to another treatise, she noted that patients with plantar fasciitis, ankle, or knee conditions are predisposed to having chronic back pain as studies note that biomechanical discrepancies have been indicated to cause chronic low back pain.  She stated that the Veteran reported his low back pain became more persistent and physically debilitating following his service-connected right PFPS, right ankle sprain, and right plantar fasciitis.  She noted that the debilitating effects from these disorders are not acute in nature and may take many years to develop and typically worsen over time.  She stated that the Veteran has no other known risk factors that may have precipitated his current condition, other than age.  She lastly noted that it is well known within the medical community that lumbar radiculopathy and neuropathic pain are secondary to spinal stenosis or disc herniations as experienced in Veteran's case.  She stated that the Veteran has findings on his MRI that are consistent with the Veteran's reported lower extremity radicular symptomatology.

The Veteran underwent a VA contract examination in August 2020.  He was diagnosed with lumbosacral strain, degenerative arthritis of the spine, IVDS, and lumbosacral radiculopathy.  He reported the onset of back pain was in 1996 when he sustained a back strain during a 10-feet fall on an obstacle course.  He stated he landed on his ankle and back.  The examiner opined that the Veteran's L4-L5 and L5-S1 DDD and right L4-5 disc herniation with radiculopathy is less likely than not proximately due to or the result of his right knee PFPS with osteoarthritis.  She noted that arthritis in one joint does not cause arthritis in another joint, and that a thorough review of medical literature failed to show such causal relationship.  She stated it is not unusual for two joints to share properties in the same person, but one joint's disease does not spread to another or cause damage to it.

The examiner further opined that the Veteran's L4-L5 and L5-S1 DDD and right L4-5 disc
  The examiner opined that the Veteran's L4-L5 and L5-S1 DDD and right L4-5 disc herniation with radiculopathy is less likely than not proximately due to or the result of his right knee PFPS with osteoarthritis.  She noted that arthritis in one joint does not cause arthritis in another joint, and that a thorough review of medical literature failed to show such causal relationship.  She stated it is not unusual for two joints to share properties in the same person, but one joint's disease does not spread to another or cause damage to it.

The examiner further opined that the Veteran's L4-L5 and L5-S1 DDD and right L4-5 disc herniation with radiculopathy is not proximately due to or the result of his right ankle sprain with residual instability.  She stated that the Veteran's lumbar spine disability and his right ankle sprain are not medically related.  She noted that the lumbar spine disability is a separate entity entirely from the right ankle sprain and unrelated to it.  She noted that a thorough review of medical literature failed to demonstrate a causal relationship.  She further stated that there is a clear cause of his ankle sprain, which was from his initial fall injury in 1996.  She stated that there are other documented pathologies of his ankle, and these were not caused by his lumbar spine disability.

The examiner also opined that the Veteran's L4-L5 and L5-S1 DDD and right L4-5 disc herniation with radiculopathy is not proximately due to or the result of his right foot plantar fasciitis.  She stated that the Veteran's lumbar spine disability and right foot plantar fasciitis are not medically related, and that the lumbar spine disability is a separate entity entirely from the right foot plantar fasciitis and unrelated to it.  She stated that a thorough review of medical literature failed to demonstrate a causal relationship.  She noted that she has reviewed the April 2020 private opinion from H.C., but that there is no literature to support an underlying pathophysiology of disc herniation causing plantar fasciitis.

After careful review, resolving any doubt in the Veteran's favor, the Board finds that service connection for L4-L5 and L5-S1 DDD and right L4-5 disc herniation with radiculopathy is warranted on a direct and secondary basis.

The Board finds that the in-service incurrence of an injury element is met.  Although the Veteran's service treatment records do not reveal any complaints or treatment for a back condition, the March 1996 record does show he fell from a 10-feet height.  Further, it appears more likely than not that he had to carry out physically demanding duties as a heavy anti-armor weapon infantryman and a boatswain mate.  Resolving any doubt in the Veteran's favor, the in-service injury element is met.

The question that remains is the nexus between his disability and service, and between his disability and his service-connected disabilities.

First, the Board finds the February 2019 VA contract opinion inadequate because the rationale lacks consideration of the Veteran's lay statements regarding the onset and continuity of symptoms that he reports to have experienced since the 1996 fall injury.  Rather, the opinion appears to be based on the absence of documented complaints and treatment.  Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007).

The Board also finds parts of the August 2020 VA contract opinion inadequate.  While she opined that the Veteran's right knee arthritis did not cause his back disability, she did not opine whether his PFPS caused his back disability.    Regarding the opinion on whether his right ankle disability caused his back disability, she appears to get confused towards the end because she states that the Veteran's lumbar spine disability did not cause his ankle disability.  She provides a similar statement for the opinion on whether his right foot disability caused his back disability because she notes in the end that there is no literature to support an underlying pathophysiology of disc herniation causing plantar fasciitis.  Moreover, she did not provide any opinions on aggravation.  El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013).  On the other hand, H.C.'s opinion appears to be probative.  It was based on review of the Veteran's medical history, and provides plausible rationale for its conclusion that the lumbar spine disability is related to service, and that his right knee, ankle, and foot disabilities caused, or at least aggravated, his lumbar spine disability.  She also explained that radiculopathy and neuropathic pain are secondary to spinal stenosis or disc herniations
ophysiology of disc herniation causing plantar fasciitis.  Moreover, she did not provide any opinions on aggravation.  El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013).  On the other hand, H.C.'s opinion appears to be probative.  It was based on review of the Veteran's medical history, and provides plausible rationale for its conclusion that the lumbar spine disability is related to service, and that his right knee, ankle, and foot disabilities caused, or at least aggravated, his lumbar spine disability.  She also explained that radiculopathy and neuropathic pain are secondary to spinal stenosis or disc herniations, which was the case for the Veteran.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Consequently, the Board gives more probative weight to the August 2020 private opinion.

In summary, the Board finds that the evidence supports the claim of service connection for L4-L5 and L5-S1 DDD and right L4-5 disc herniation with radiculopathy, both on direct and secondary basis.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310; Lynch v. McDonough, 21 F.4th 776, 781-82 (2021).  Accordingly, service connection is granted.

 

 

S. Merrick

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Jake Choi, Attorney Advisor

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.