DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

Summary

The veteran, who served in the military, appeals the denial of service connection for lumbar degenerative disc disease. The Board's previous decision in November 2024 denied this claim, finding no current disability or in-service incurrence. The veteran's initial claim focused on direct service connection due to flightline duties and a motor vehicle accident, but service records did not corroborate a back injury from the accident. The veteran's representative submitted a Joint Motion for Partial Remand to the Court of Appeals for Veterans Claims, citing the absence of a hearing notice in prior VA decisions. Following this remand, the veteran filed a Supplemental Claim in October 2025, asserting a new theory of secondary service connection for lumbar degenerative disc disease, claiming it resulted from altered gait and stress on his lower back due to service-connected bilateral knee disabilities. He submitted a VA Form 21-4138 supporting this claim, referencing a lumbar X-ray showing minimal spondylosis. The VA Regional Office subsequently granted service connection for lumbar degenerative disc disease with a 20 percent rating, effective October 2025. The Board acknowledges this favorable RO decision and grants service connection for the lumbar spine condition as secondary to the bilateral knees, finding the RO's decision binding. The Board notes the veteran's waiver of any argument regarding a hearing before the RO, given his subsequent supplemental claim and failure to request a hearing.

Rationale

Board is bound by RO's favorable finding of secondary service connection.; Veteran presented new theory of secondary causation in supplemental claim.; VA examination found degenerative disc disease at least as likely as not caused by service-connected bilateral knee disabilities.

Full Decision Text

Citation Nr: A26019794
Decision Date: 03/05/26	Archive Date: 03/05/26

DOCKET NO. 220915-277490
DATE: March 5, 2026

ORDER

Entitlement to service connection for lumbar degenerative disc disease, including as secondary to the service-connected bilateral knee disabilities, is granted.

FINDING OF FACT

The Veteran suffers from degenerative disc disease of the lumbar spine that resulted from active military service. 

CONCLUSION OF LAW

The criteria for service connection for degenerative disc disease of the lumbar spine, including as secondary to service-connected bilateral knee disabilities, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.

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REASONS AND BASES FOR FINDING AND CONCLUSION

In a decision dated November 7, 2024, the Board of Veterans' Appeals (Board) denied the issue of service connection for lower back pain.  The Board found that the evidence of record did not support a finding that the Veteran suffered from a current lower back disability, nor any in-service incurrence or aggravation of a disease or injury.  The Board considered the direct theory of entitlement based on the Veteran's duties on the flightline and in maintenance (from the original claim) and based on a motor vehicle accident during active service (from the Informal Hearing Presentation submitted by the Disabled American Veterans).  The Board concluded that a compensation and pension examination was not required in this case due to the lack of evidence proffered on the elements of a current disability and an in-service incurrence.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Veteran appealed that denial to the United States Court for Veterans Claims (Court).  In a Joint Motion for Partial Remand (JMPR), submitted on July 23, 2025, the Veteran's counsel and counsel representing the Secretary agreed that the Board's denial should be remanded.  A Deputy Clerk/Chief Staff Attorney for the Court entered an order adopting the terms of the JMPR on September 9, 2025.  The sole basis cited in support of remanding this matter was the absence of a notice of the right to a hearing on the Veteran's claim in the notification letter that accompanied the February 2022 Rating Decision and August 2022 Higher-Level Review Rating Decision.  38 C.F.R. §§ 3.103(b), (d).  According to the JMPR, the absence of such notice "prevent[ed] Appellant from being able to make a fully informed decision with respect to his review options."  

In a VA Form 20-0995, Decision Review Request: Supplemental Claim, dated October 3, 2025, the Veteran again pursued a claim for service connection for "Lumbar Degenerative Disc Disease claimed as secondary knee strain."  Page 2 of that form contains the following instruction: "You are entitled to a hearing at any time in the claims process. If you wish to have a hearing, you can contact us online through Ask VA: https://ask.va.gov or call us toll-free at 1-800-827-1000 (TTY: 711)."  Contemporaneous with his Supplemental Claim, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, (also dated October 3, 2025) in which the Veteran wrote the following:

I am submitting this statement in support of my Supplemental Claim for service connection of my lumbar spine condition (degenerative disc disease, lumbar spondylosis, and facet arthrosis), claimed as secondary to my service -connected bilateral knee strains.

Due to my service -connected knee conditions, I have experienced long-term altered gait, instability, and chronic knee pain. These issues have caused abnormal stress on my lower back, leading to worsening lumbar pain, reduced mobility, and documented degenerative changes shown in my VA imaging (lumbar X-ray dated 09/12/2024, Atlanta VA Medical Center)

My back condition has significantly affected my ability to work and perform daily activities. I continue to receive treatment for both knee and back pain at the Atlanta VA Medical Center. I respectfully request that the VA grant service connection for my lumbar spine condition as secondary to my service -connected bilateral knee disabilities.

The Veteran did not request a hearing.  The Statement in Support of Claim quite clearly asserted a theory of entitlement in his supplemental claim that he had not previously presented, that of secondary service connection.  With regard to the referenced lumbar x-ray, the Veteran's treatment records reflect "September 2024 (lumbar x-ray showed minimal lumbar spondylosis."  The
09/12/2024, Atlanta VA Medical Center)

My back condition has significantly affected my ability to work and perform daily activities. I continue to receive treatment for both knee and back pain at the Atlanta VA Medical Center. I respectfully request that the VA grant service connection for my lumbar spine condition as secondary to my service -connected bilateral knee disabilities.

The Veteran did not request a hearing.  The Statement in Support of Claim quite clearly asserted a theory of entitlement in his supplemental claim that he had not previously presented, that of secondary service connection.  With regard to the referenced lumbar x-ray, the Veteran's treatment records reflect "September 2024 (lumbar x-ray showed minimal lumbar spondylosis."  The Veteran received a compensation and pension examination with a corresponding medical opinion that found he does suffer from degenerative disc disease (other than intervertebral disc syndrome) of the lumbar spine and that this disability is at least as likely as not caused by his service connected bilateral knee disabilities.  In a notification letter dated October 28, 2025, the Department of Veterans Affairs (VA) Regional Office notified the Veteran that it had granted his claim for service connection for lumbar degenerative disc disease other than intervertebral disc syndrome.  

Meanwhile, the remanded appeal returned to the Board for actions not inconsistent with the terms of the JMPR.  As stated earlier, the sole reason for remanding the appeal back to the Board was the absence of notice regarding the Veteran's opportunity to request a hearing prior to the RO denying his claim.  The attorney who presented the JMPR did not overtly continue to represent the Veteran at that stage, although the Board has sent correspondence about this appeal to the Disabled American Veterans at the business address of that attorney.  The Disabled American Veterans submitted another Informal Hearing Presentation IHP in February 2026 - a piece of paper that takes up barely a page of text.  The IHP did not mention anything about a hearing, it did not mention effective date or rating percentage...it didn't even acknowledge that the benefit sought had already been granted.  The Board considers that filing alongside the fact that the Veteran did not request a hearing before the RO when he submitted his Supplemental Claim seeking this benefit.  In light of those filings, the Board finds that the Veteran has waived any argument as to a hearing before the RO.  Noteworthy to this finding is the time sequence of the Veteran's pursuit of an RO hearing.  In July, his attorney cited the Veteran's right to an RO hearing as the basis necessitating remand in the JMPR.  Barely two months later, the Veteran filed a Supplemental Claim and did not request a hearing before the RO.  In other words, the Veteran knew he could request a hearing before the RO (by virtue of his attorney's position before the Court and by virtue of the instruction on the Supplemental Claim form) and he voluntarily elected not to request one.  The Board is left to wonder what was the purpose of complaining to the Court about a hearing that the Veteran never even wanted in the first place?

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 military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a).

To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). 

In order to prevail on the issue of entitlement to secondary service connection, there must be (
 in service. 38 C.F.R. § 3.303(d).

Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). 

In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b).

Entitlement to service connection for lumbar degenerative disc disease, to include as secondary to the bilateral knees.

The Board's previous findings remain undisturbed.  Nothing submitted since the Board previously addressed the direct theory of entitlement causes the Board to revisit its earlier determinations as to that theory.  The Veteran's initial January 2022 claim for service connection for what was then claimed as lower back pain mentioned only direct service connection and linked the back pain to his work on the flightline and in maintenance. In October 2022, the Veteran's representative submitted an IHP stating that the Veteran's back pain was related to a motor vehicle accident which occurred on active duty. The Veteran was said to have been hit by a car while crossing the street. A review of the Veteran's service treatment records (STRs) shows a May 2013 motor vehicle accident but there is no indication it resulted in a back injury. The records show complaints of knee injuries but no back injury. There was no discussion or indication or any back pain or back complaints of any kind in his August 2013 separation examination. Following the JMPR, the Veteran did not submit any additional evidence linking his lower back pain to his time in service or to any particular injury in service. Indeed, the Veteran expressly presented a theory of entitlement based solely on secondary causation as to his bilateral knee disabilities.  In the Board's previous decision on this issue, the Board held that a compensation and pension examination was not required because the McLendon factors related to current disability and in-service incurrence had not been met.  That finding remains intact because the Veteran has not offered any evidence since the prior Board decision to address any injury that he might have sustained in service that caused his back disability.  Therefore, the Board's prior decision that entitlement to service connection on a direct basis is not warranted remains on firm footing. 

The October 2025 RO rating decision granted service connection and awarded a 20 percent rating for lumbar degenerative disc disease effective October 6, 2025, which was the date of receipt of the supplemental claim. The Board is bound by the RO's October 2025 favorable finding that the Veteran's lumbar degenerative disc disease resulted from his service-connected bilateral knee strains. See 38 C.F.R. § 3.104(c). Accordingly, the Veteran's claim for entitlement to service connection for lumbar degenerative disc disease as secondary to his bilateral knees is granted. See Johnson v. Collins, 38 Vet. App. 151 (2025); Concepcion-Maldonado v. Collins, 38 Vet. App. 294 (2025).

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As the Veteran was seeking service connection for this disability the RO's grant of service connection represents a full grant of the benefit sought. The Board is merely re-granting service connection for lumbar degenerative disc disease as secondary to his bilateral knees. This decision should not be construed as limiting the Veteran's ability to pursue higher
 knee strains. See 38 C.F.R. § 3.104(c). Accordingly, the Veteran's claim for entitlement to service connection for lumbar degenerative disc disease as secondary to his bilateral knees is granted. See Johnson v. Collins, 38 Vet. App. 151 (2025); Concepcion-Maldonado v. Collins, 38 Vet. App. 294 (2025).

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As the Veteran was seeking service connection for this disability the RO's grant of service connection represents a full grant of the benefit sought. The Board is merely re-granting service connection for lumbar degenerative disc disease as secondary to his bilateral knees. This decision should not be construed as limiting the Veteran's ability to pursue higher ratings or an earlier effective date with the RO. See Grantham v. Brown, 114 F.3d 1156, 1158-59); see also Evan v. West, 12 Vet. App. 296 (1999) (effective date is a "downstream matter" to be addressed after the benefit has been awarded). 

 

RAY BARTO SLABBEKORN, JR.

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Ledman, Andrew

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.