DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

Summary

The Veteran served from July 1996 to July 1999. He appeals the denial of service connection for a right lower extremity disability manifested by muscle spasms and the grant of service connection for a lumbar spine disability and radiculopathy of the right lower extremity secondary to the lumbar spine condition. The Veteran testified about an in-service incident involving heavy lifting that caused lumbar spine pain, which he managed on his own for years. His service treatment records documented lumbar spine complaints and diagnoses of back strain and chronic back pain. The Board found the Veteran's reports of continuous lumbar spine pain and functional limitations credible, noting that a lack of post-service treatment documentation did not negate continuity of symptoms. The Board found the July 2018 VA examiner's opinion inadequate because it failed to consider the Veteran's credible reports and the possibility of degenerative changes being related to in-service strain. Resolving reasonable doubt in the Veteran's favor, the Board granted service connection for the lumbar spine disability. For the secondary claim of radiculopathy, the Board noted the Veteran's current lumbar spine disability and the July 2018 VA examiner's opinion, which, despite being negative regarding service connection for the lumbar spine at that time, indicated the radiculopathy was likely due to degenerative changes. The Board found this opinion established a link between the radiculopathy and the now service-connected lumbar spine disability, granting the secondary claim. The claim for right lower extremity disability manifested by muscle spasms was denied, as the Board found no competent medical evidence of a current disability or functional impairment, and any reported symptoms were attributed to post-service overuse.

Rationale

Competent and credible statements regarding continuous symptoms; Documented in-service complaints; Resolving reasonable doubt in Veteran's favor

Full Decision Text

Citation Nr: 22042352
Decision Date: 07/26/22	Archive Date: 07/26/22

DOCKET NO. 20-05 993
DATE: July 26, 2022

ORDER

Entitlement to service connection for a lumbar spine disability is granted.

Entitlement to service connection for radiculopathy of the right lower extremity, as secondary to the now service-connected lumbar spine disability, is granted.

Entitlement to service connection for a disability of the right lower extremity manifested by muscle spasms is denied.

FINDINGS OF FACT

1. Resolving reasonable doubt in the Veteran's favor, his lumbar spine disability is related to his active service. 

2. Resolving reasonable doubt in the Veteran's favor, the radiculopathy of his right lower extremity is proximately due to his now service-connected lumbar spine disability. 

3. The persuasive weight of the evidence is against finding that the Veteran has had a diagnosed right lower extremity disability manifested by muscle spasms at any time during the appeal period. 

CONCLUSIONS OF LAW

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

2. The criteria for service connection for radiculopathy of the right lower extremity, as secondary to the now service-connected lumbar spine disability, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 

3. The criteria for service connection for a disability of the right lower extremity manifested by muscle spasms are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1996 to July 1999.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  In September 2021, the Veteran and his wife testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. The Veteran has not raised any issues in the current appeal that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). 

In March 2018, the Veteran's service treatment records (STRs) were determined to be unavailable for review. Although STRs were associated with the claims file in July 1999, it is unclear whether such constitutes his complete STRs or only a portion of them. In situations where STRs are completely or partially unavailable, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The legal standard is not lowered for proving service connection. Rather, the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran is increased. Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215 (2005).

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; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for chronic disabilities if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1113; 38 C.F.R. §§ 3.307, 3.309. If a condition noted during service is not shown to be chronic, then generally 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 in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for chronic disabilities if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1113; 38 C.F.R. §§ 3.307, 3.309. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). 

The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The presence of a chronic disability at any time in the claim process can justify a grant of service connection, even if the disability has since resolved or the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). A Veteran's reports of pain may constitute a current disability to the extent that they result in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). 

VA administers the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102.

Lumbar Spine

The Veteran contends that he has a lumbar spine disability related to his active service. He reports that, in his service as a cargo specialist, he was required to do heavy lifting on a heavy basis. At his September 2021 Board hearing, he reported an incident that occurred while he was working in a motor pool when he was helping to change a tire on a vehicle and was left to hold the weight by himself. He reported the tire fell down and he fell on the ground and experienced a sharp pain throughout his lumbar spine and that he needed assistance to make it to sick call. His STRs reflect a diagnosis of mechanical lower back pain in April 1997 and the Veteran reported ongoing back pain following a lifting incident earlier in service. He continued to report back pain in May 1997, November 1997, and December 1997 related to an incident lifting a heavy weight in motor pool and was diagnosed with a back strain, mechanical lower back pain, and chronic back pain. The Veteran reports that he continues to experience lumbar spine pain and he "dealt with it" on his own for years until it worsened in recent years and his wife convinced him to seek treatment. The Veteran and his wife, who is a nurse, testified to how they tried to manage the Veteran's lumbar spine pain and functional limitations prior to him finally seeking treatment. He testified that his lumbar spine pain began in service and that such symptoms have continued to the present and his range of motion as well as his ability to lift and play with his children has been limited throughout the years following his service. Such reports are credible. 

VA records reflect various lumbar spine complaints and diagnoses of chronic lumbar spondylosis, low back pain, mild diffuse arthritis and bone spurs formation, disc protrusion at the lumbosacral junction, and radiculopathy. See, e.g., June 2011, March 2015, June 2015, June 2016, June 2017, December 2017, and August 2019 VA Treatment Records and June 2019 Private Treatment Records. 

The July 2018 VA examiner diagnosed degenerative arthritis of the spine, lumbar facet arthritis with disc changes S1, mechanical low back pain, lumbar strain, and lumbosacral radiculopathy. The examiner recorded the Veteran's reports of low back pain documented in his STRs and recorded the Veteran's contentions that he injured his lumbar spine while lifting a heavy tire while on active duty. The examiner noted that the Veteran reported ongoing back pain beginning in and continuing since service as well as his reports that he did not seek treatment for his back pain until more recently when the pain became more persistent. The examiner opined it was less likely than not that the Veteran's lumbar spine disability was related to his service or to his in-service complaints of lumbar spine pain. The examiner noted the STR entries of low back pain during service but relied on the absence of any medical records between service and approximately 2011 despite the Veteran's credible reports that he tried
 the Veteran's reports of low back pain documented in his STRs and recorded the Veteran's contentions that he injured his lumbar spine while lifting a heavy tire while on active duty. The examiner noted that the Veteran reported ongoing back pain beginning in and continuing since service as well as his reports that he did not seek treatment for his back pain until more recently when the pain became more persistent. The examiner opined it was less likely than not that the Veteran's lumbar spine disability was related to his service or to his in-service complaints of lumbar spine pain. The examiner noted the STR entries of low back pain during service but relied on the absence of any medical records between service and approximately 2011 despite the Veteran's credible reports that he tried to manage his pain on his own until it became unmanageable. The examiner also indicated that the Veteran's current lumbar spine disability involves predominantly degenerative changes that would be unrelated to his initial lumbar strain in service as the medical literature does not support a relationship between degenerative changes and lumbar strains. Confusingly, in providing the negative opinion, the examiner indicated that repetitive injury or a history of manual laborsuch as the repetitive lifting and manual labor the Veteran described he performed during his active servicecan predispose a person to developing degenerative arthritis of the lumbar spine. 

Despite the Veteran's reports of lumbar spine pain beginning in service and continuing to the present and his STRs reflecting treatment for a lumbar spine disability during service, the examiner relied on the absence of documented complaints of a lumbar spine disability between the Veteran's separation from service and 2011 in providing a negative opinion. The examiner failed to consider the Veteran's contentions regarding his service or the Veteran's credible reports that he tried to manage his lumbar spine disability on his own until it got progressively worse over time. The examiner did not provide any rationale for why the Veteran's reports were discounted or were not addressed. 

Based on the evidence of record, the Board finds that the Veteran has experienced symptoms of a lumbar spine disability from his time in service to the present. While no treatment records exist during the applicable presumptive period (the one-year period following conclusion of his service to warrant presuming that his disability was incurred during his service), the Board finds that the Veteran continued to experience lumbar spine pain from the time he separated from service to when he was diagnosed with a lumbar spine disability. He is competent to report that he experienced symptoms of lumbar spine pain during that period. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

While the July 2018 VA examination included an unfavorable opinion as to a nexus between the Veteran's in-service lumbar spine pain and his various post-service lumbar spine diagnoses, his reports of continuity of symptoms were not considered by the examiner due to the lack of documented continuing complaints. Importantly, however, a lack of documentation showing treatment after service is not sufficient to show that the Veteran has not had a continuity of symptoms. As such, the Board finds the opinion inadequate and does not afford it much probative weight. 

Based on the above, the Board finds that the Veteran's competent and credible statements regarding his continuous experience of, and treatment for, symptoms of his lumbar spine disability, as well as documented in-service complaints of these symptoms, put the evidence in relative equipoise in determining whether his diagnosed lumbar spine disability is related to his active service. In resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for his lumbar spine disability.

Radiculopathy Of The Right Lower Extremity

Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310(a)-(b). Secondary service connection requires evidence of (1) a current disability, (2) a service-connected disability, and (3) a nexus, or link, between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998).

The Veteran contends that his radiculopathy of the right lower extremity is related to his active service or, alternatively, secondary to his lumbar spine disability. The Veteran has been diagnosed with radiculopathy of his right lower extremity. See July 2018 VA Examination. As described above, the Veteran is now service connected for a lumbar spine disability. Thus, the first and second elements of secondary
(a)-(b). Secondary service connection requires evidence of (1) a current disability, (2) a service-connected disability, and (3) a nexus, or link, between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998).

The Veteran contends that his radiculopathy of the right lower extremity is related to his active service or, alternatively, secondary to his lumbar spine disability. The Veteran has been diagnosed with radiculopathy of his right lower extremity. See July 2018 VA Examination. As described above, the Veteran is now service connected for a lumbar spine disability. Thus, the first and second elements of secondary service connection are satisfied, and the remaining question is whether the evidence establishes that his radiculopathy of the right lower extremity was caused or aggravated by his service-connected lumbar spine disability. 

The July 2018 VA examiner opined it was less likely than not that the Veteran's radiculopathy of the right lower extremity was related to his lumbar spine disability, as the Veteran's lumbar spine disability was not service connected. As described above, the Veteran is now service connected for a lumbar spine disability but was not at the time of the July 2018 examination. Despite providing a negative opinion, the examiner then indicated that the Veteran's radiculopathy of the right lower extremity is likely due to the degenerative changes of the Veteran's lumbar spine. The conclusions provided by the VA examiner establish a linkage between the Veteran's radiculopathy of the right lower extremity and his now service-connected lumbar spine disability. The examiner's opinion establishes that the Veteran's radiculopathy of the right lower extremity is proximately due to his now service-connected lumbar spine disability. Resolving any reasonable doubt in the Veteran's favor, the Board finds that the opinion supports the grant of service-connected for radiculopathy of the right lower extremity on a secondary basis. Thus, the Board finds that his radiculopathy of the right lower extremity is secondary to his service-connected lumbar spine disability. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for radiculopathy of the right lower extremity is warranted.

Disability Of The Right Lower Extremity Manifested By Muscle Spasms

The Veteran contends that he has a right leg disability manifested by muscle spasms that is related to his service. Alternatively, he contends that this disability is secondary to his now service-connected lumbar spine disability. A thorough review of the evidence of record, however, indicates that he does not have a current disability manifested by muscle spasms of the right leg. Initially, and in this regard, the Board notes that post-service medical records associated with the file do not reflect a diagnosis of, or treatment for, a muscle spasm disability of the right leg. 

A July 2018 VA examiner found that the Veteran does not have a residual right leg muscle injury disability. The examiner recorded the Veteran's medical history and prior reports in June 2011 of muscle cramps in both legs from prolonged sitting at work as a forklift operator and that he currently reported a pulling sensation in the anterior right thigh from standing. The examiner found no evidence during the examination, in the record, or by the Veteran's medical history of a muscle injury. Functional loss or functional impairment was not reported. The examiner opined that it was less likely than not that the Veteran's claimed muscle spasm disability was due to his military service. [In this regard, the Board notes that available STRs do not document any complaints of muscle problems of the right leg.]

The examiner again noted that there was no diagnosis of a muscle injury in service or at the time the Veteran reported cramps in both legs in June 2011. The examiner indicated that the leg cramp sensation reported by the Veteran appears more likely than not due to the prolonged standing and circumstances related to the Veteran's post-service work as a forklift operator without adequate stretching. The examiner found no evidence to support a lumbar spine disability causing a muscle spasm to originate in the anterior right thigh and that, without a known thigh muscle injury, the pain and spasm reported by the Veteran is most likely due to overuse caused by his current employment. 

While the Veteran reported right leg muscle cramps during a VA treatment visit in June 2011 and reports of pain to the right thigh, no medical evidence of record provides evidence of a current muscle spasm disability. The evidence does not show that the Veteran's reports of pain caused by muscle spasms of the right leg have resulted in functional impairment such to warrant service connection under Saunders v. Wilkie, 886 F.3
klift operator without adequate stretching. The examiner found no evidence to support a lumbar spine disability causing a muscle spasm to originate in the anterior right thigh and that, without a known thigh muscle injury, the pain and spasm reported by the Veteran is most likely due to overuse caused by his current employment. 

While the Veteran reported right leg muscle cramps during a VA treatment visit in June 2011 and reports of pain to the right thigh, no medical evidence of record provides evidence of a current muscle spasm disability. The evidence does not show that the Veteran's reports of pain caused by muscle spasms of the right leg have resulted in functional impairment such to warrant service connection under Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). To the extent that the Veteran's reports of pain and cramps of the right leg would result in functional impairment, the medical evidence of record does not indicate that any such disability is related to the Veteran's military service or to his now service-connected lumbar spine disability. The July 2018 VA examiner opined that the Veteran's reports of muscle cramps are more likely than not due to overuse caused by his post-service employment and such is not contradicted by other medical evidence of record. 

The threshold requirement for service connection is competent evidence of the existence of the claimed disability at some point during the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007), Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Board recognizes the Veteran's sincere belief in his claim, the most competent evidence of record does not show that he has had a disability manifested by muscle spasms of the right leg at any time during the current appeal. As such, the record does not support service connection for this disability. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

(CONTINUED ON NEXT PAGE)

Because, however, the persuasive weight of the evidence is against this service connection claim, it must be denied. 

 

 

THERESA M. CATINO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Goreham

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.