DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

Summary

The veteran, who served in the U.S. Army from November 1993 to November 1997, including as a parachutist, appeals the denial of service connection for a low back disability. The primary issue was whether the veteran's current low back condition, characterized as degenerative disc disease and L5 partial lumbar sacralization, was related to service. The veteran contended that the disability resulted from the general rigors of service, including parachute jumps, road marches, and carrying heavy equipment, and that the pain began in service and continued thereafter. The Board found evidence of a current low back disability, with conflicting VA opinions. Early opinions suggested degenerative disc disease, while a later opinion found only L5 partial lumbar sacralization, which it characterized as a congenital defect. The Board ultimately found the veteran had current diagnoses of both degenerative disc disease and L5 partial lumbar sacralization, establishing the first element of service connection. The second element, an in-service event, was established by a June 1994 service treatment record noting back pain, the veteran's parachutist status, and credible lay testimony regarding in-service activities. For the nexus element regarding degenerative disc disease, the Board found the veteran's lay statements regarding onset and continuity credible, despite silent service treatment records. It noted the veteran's other service-connected orthopedic conditions and found the VA examiners' opinions of limited probative value as they did not fully consider the veteran's credible lay statements or the full scope of his service activities. Resolving reasonable doubt in the veteran's favor, the Board found the evidence in equipoise and granted service connection for degenerative disc disease. Service connection for L5 partial lumbar sacralization was denied, as the Board found it to be a congenital defect, citing probative VA medical opinion and literature.

Rationale

Credible lay statements of onset and continuity; Equitable balance of evidence; Benefit of the doubt applied

Full Decision Text

Citation Nr: 24019169
Decision Date: 05/06/24	Archive Date: 05/06/24

DOCKET NO. 14-31 478
DATE: May 6, 2024

ORDER

Service connection for a low back disability, to include degenerative disc disease, but to exclude L5 partial lumbar sacralization, is granted.

FINDINGS OF FACT

1. It is at least as likely as not that the Veteran has lumbar spine degenerative disc disease; it is also at least as likely as not that it was incurred in or caused by service. 

2. The Veteran has L5 partial lumbar sacralization; the evidence demonstrates that it is a congenital defect. 

CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for a low back disability, to include degenerative disc disease, but to exclude L5 lumbar sacralization, have been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty in the U.S. Army from November 1993 to November 1997. His decorations include the Parachutist Badge. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. 

In January 2019 and April 2022, the Veteran testified at Board hearings before the undersigned. Transcripts of those hearings have been associated with the record.

The issue on appeal was previously before the Board in April 2019 and August 2022, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. In its most recent, August 2022 remand, the Board directed the AOJ, in pertinent part, to obtain any outstanding VA treatment records, to afford the Veteran another opportunity to submit additional evidence in connection with his appeal, and to obtain a new VA opinion as to the nature and etiology of his low back disability. 

In October 2022, the AOJ obtained updated VA treatment records. In September 2022, it sent the Veteran a letter asking him to identify and provide an appropriate release for any records of non-VA treatment pertinent to his appeal. While he did not respond to that request, the Board notes that the AOJ sent him a similar letter in October 2019, following the Board's April 2019 remand. In November 2019, the Veteran provided a release and identified three non-VA treatment providers. In December 2019, the AOJ obtained and associated with the claims file records from all three of those providers. In light of the above, the Board finds that the AOJ has at least substantially complied with the Board's April 2019 and August 2022 remand directives with respect to records development. Stegall v. West, 11 Vet. App. 268 (1998).

In November 2022, the AOJ afforded the Veteran a new VA examination with respect to his low back disability. In March 2023, it obtained a VA opinion as to the etiology of that disability. While the March 2023 VA opinion is not fully adequate with respect to degenerative disc disease, the Board finds that it is fully adequate as to L5 partial lumbar sacralization. Inasmuch as the Board is granting the Veteran's claim in full with respect to degenerative disc disease, and there are no other inadequacies as to the March 2023 opinion, there is no prejudice to the Veteran in proceeding with adjudication of his claim at this time. 

As a final introductory matter, the Board notes that claims for service connection for right and left knee disabilities, and for a bilateral foot disability were also previously pending on appeal. In an October 2023 rating decision, the AOJ granted service connection for bilateral foot strain and bilateral plantar fasciitis. In a separate October 2023 rating decision, it granted service connection for left knee patellofemoral dysfunction and degenerative arthritis and for right knee strain. As the October 2023 rating decisions represent a full grant of the benefits sought on appeal with respect to those issues, they are no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).    

Entitlement to service connection for a low back disability

The
 disabilities, and for a bilateral foot disability were also previously pending on appeal. In an October 2023 rating decision, the AOJ granted service connection for bilateral foot strain and bilateral plantar fasciitis. In a separate October 2023 rating decision, it granted service connection for left knee patellofemoral dysfunction and degenerative arthritis and for right knee strain. As the October 2023 rating decisions represent a full grant of the benefits sought on appeal with respect to those issues, they are no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).    

Entitlement to service connection for a low back disability

The Veteran contends that his low back disability was incurred in or caused by service. Specifically, he contends it is due to traumatic stress placed on his musculoskeletal system from being a parachutist in service. He also reported at a February 2011 VA examination that the onset of his low back pain was in 1994 and was from road marches and loading parachutes onto a truck. In essence, he contends that his back disability had its onset during service, that it was caused by the general rigors of service, and that it has continued since. 

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

Service connection may be granted for a congenital disease (a condition that is "capable of improving or deteriorating"), but not a congenital defect (a condition that is "more or less stationary in nature"), where the disease first manifested during service (incurrence) or where it preexisted service but was worsened beyond its normal progression as a result of service (aggravation). Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90); Monroe v. Brown, 4 Vet. App. 513, 515 (1993).

If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

A layperson is generally incapable of opining on matters requiring medical knowledge. However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App.
 identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).

Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, 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.

As an initial matter, the Board notes that there is no material dispute that the Veteran has a current low back disability, although the evidence is not entirely consistent as to how that disability has been characterized. The Veteran was afforded a VA examination in connection with his claim in February 2011. The examiner found that imaging of the lumbar spine showed narrowing of the disk space height at L4-5, and that L5 was considered to be transitional and partially sacralized. He indicated that the Veteran had degenerative disc disease. The Veteran was afforded a second VA examination in February 2020. Imaging at that time showed no acute abnormality but did show partial sacralization of L5 on the left. The February 2020 VA examiner found that the Veteran's only diagnosis was L5 partial lumbar sacralization, and that he did not have degenerative disc disease. She explained that the February 2011 x-ray was misinterpreted by the VA examiner and emphasized that the February 2020 x-ray did not show degenerative disc disease. The Veteran was afforded a third VA examination in November 2022. The examiner expressly found that he had degenerative disc disease other than intervertebral disc syndrome and also noted the Veteran's report that he had been told he had degenerative disc disease and a bulging disc that was pushing on his sciatic nerve. While the November 2022 VA examiner did not indicate that the Veteran had any other low back diagnoses other than degenerative disc disease in her examination report, she did indicate in her March 2023 opinion that he had L5 partial lumbar sacralization. In light of this evidence, and resolving any reasonable doubt in the Veteran's favor, the Board finds that he has current diagnoses of both degenerative disc disease and L5 partial lumbar sacralization. The first element of service connection as to the presence of a current disability has therefore been established. 

The Board also finds that there is no material dispute as to an in-service event, injury, or disease. A June 1994 service treatment record (STR) shows the Veteran was treated on that occasion for back pain that manifested while he was doing stretches. As noted, he was also awarded the Parachutist Badge, which confirms that he completed many parachute jumps during service. The Board also finds his statements as to participating in road marches, loading parachute packs, and carrying heavy equipment during service to be entirely credible. The second element of service connection as to an in-service event, injury, or disease has therefore also been established. 

As to the nexus, or link, between the Veteran's current degenerative disc disease and his service, the Board finds that he is competent to report that he first noticed back pain in service and that it has continued since. The Board also notes that he has been awarded service connection for several other orthopedic disabilities
 back pain that manifested while he was doing stretches. As noted, he was also awarded the Parachutist Badge, which confirms that he completed many parachute jumps during service. The Board also finds his statements as to participating in road marches, loading parachute packs, and carrying heavy equipment during service to be entirely credible. The second element of service connection as to an in-service event, injury, or disease has therefore also been established. 

As to the nexus, or link, between the Veteran's current degenerative disc disease and his service, the Board finds that he is competent to report that he first noticed back pain in service and that it has continued since. The Board also notes that he has been awarded service connection for several other orthopedic disabilities due to the general rigors of his service, including for right and left knee disabilities and bilateral foot disabilities. There is also nothing in the evidence to call into question the Veteran's report that he first experienced back pain in service and that is has continued since. While acknowledging that his STRs and post-service treatment records are silent for complaints of and treatment for back pain, he has explained that he has not sought treatment other than over-the-counter medications. In this regard, his statements as to onset and continuity of symptoms are entirely consistent with the evidence of record. Resolving any reasonable doubt in the Veteran's favor, the Board finds that the evidence as to whether the Veteran's degenerative disc disease may be associated with service is at least in equipoise. As such, an award of service connection for a low back disability, to include degenerative disc disease, is warranted. 

The Board acknowledges that VA examiners have offered negative nexus opinions with respect to the Veteran's low back disability, to include degenerative disc disease. However, none of the VA examiners appear to have fully considered his credible lay statements with respect to onset and continuity of symptoms. Still further, none of them appear to have fully considered the STRs and military personnel records, which demonstrate that the Veteran not only injured his back during service in June 1994, but that he also participated in dozens of parachute jumps, as well as road marches, all while carrying heavy equipment. In this regard, the Board finds that the VA examiners' opinions as to degenerative disc disease are of limited probative value. 

The Board also finds that service connection for L5 partial lumbar sacralization is not warranted, inasmuch as the evidence demonstrates that that disability is a congenital defect. As noted, service connection for congenital defects is not available. See Quirin, supra. The February 2020 VA examiner stated that partial sacralization was a congenital anomaly that usually manifested as low back pain in adulthood, as was the case with the Veteran, and that it was not related to service. While the February 2020 VA examiner did not specify whether L5 lumbar sacralization was a congenital defect or disease, the March 2023 VA examiner clearly stated that it was a defect because it was generally more static in nature. She explained that sacralization was a common irregularity of the spine, where the fifth vertebra was fused to the sacrum bone at the bottom of the spine. She noted that L5 might fuse fully or partially on either side of the sacrum, or on both sides. She then stated that sacralization occurred in the embryo and cited to several medical articles in support of her opinion. 

The Board finds that the March 2023 VA opinion is the most probative evidence of record as to the question of whether the Veteran's L5 partial lumbar sacralization is a congenital defect. It was based on a complete review of the record, contains a thorough rationale, and cites to medical literature for support. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are also no other medical opinions of record, or any other evidence, which suggests that lumbar sacralization is not a congenital defect. Inasmuch as congenital defects are not subject to service connection for compensation, the Board finds that the evidence is persuasively against a finding that service connection for that disability is warranted. 

In light of all of the above, the Board finds that an award of service connection for a low back disability, to include degenerative disc disease, is warranted, but that an award of service connection for L5 partial lumbar sacralization is not warranted. The Veteran's appeal, insofar as it can be, is therefore granted.  

 

 

V. Chiappetta

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Oldroyd, 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
 against a finding that service connection for that disability is warranted. 

In light of all of the above, the Board finds that an award of service connection for a low back disability, to include degenerative disc disease, is warranted, but that an award of service connection for L5 partial lumbar sacralization is not warranted. The Veteran's appeal, insofar as it can be, is therefore granted.  

 

 

V. Chiappetta

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Oldroyd, 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.