DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

E. BLOWERS · 2025 · Case ID: 25002638

MIXED

Summary

The Veteran, who served from November 1986 to May 1991, appeals the denial of service connection for a back disability and the remand of claims for left and right foot conditions. The Veteran contended that a back disability was due to in-service injuries, citing multiple instances of back pain and injury during service, including a snapped back during a field exercise and while lifting boxes. Lay statements from fellow service members corroborated the Veteran's complaints of back pain and injuries during service. The Board found the Veteran's testimony and lay statements credible, and despite a negative VA opinion that cited a lack of contemporaneous service treatment records, the Board resolved reasonable doubt in the Veteran's favor. The Board found the private medical opinions, particularly one from an orthopedist, more probative as they addressed the in-service injuries and provided rationale. Service connection for degenerative arthritis of the lumbar spine with intervertebral disc syndrome and lumbar radiculopathy was granted. The foot claims were remanded for further development, including obtaining private treatment records, VA treatment records, and a VA examination to determine the nature and etiology of any left and right foot conditions, assess aggravation of pre-existing pes planus, and opine on secondary service connection to the newly granted back disability.

Rationale

In-service injury to the back; Continuous back pain since service; Credible lay statements and testimony; Resolved reasonable doubt in Veteran's favor; Private medical opinion provided rationale

Special Benefit

NO SPECIAL BENEFIT

Docket No.

18-03 589

Full Decision Text

Citation Nr: 25002638
Decision Date: 02/24/25 Archive Date: 02/24/25

DOCKET NO. 18-03 589
DATE: February 24, 2025

ORDER

Service connection for degenerative arthritis of the lumbar spine with intervertebral disc syndrome (IVDS) and lumbar radiculopathy (claimed as back condition, herein back disability) is granted.

REMANDED

Service connection for right foot condition is remanded.

Service connection for left foot condition is remanded.

FINDINGS OF FACT

1. The Veteran has a current diagnosis of degenerative arthritis of the lumbar spine with IVDS and lumbar radiculopathy.

2. The Veteran injured the back in service.

3. The current degenerative arthritis of the lumbar spine with IVDS and lumbar radiculopathy is related to service.

CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran, who is the Appellant, served on active duty from November 1986 to May 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision from the Regional Office (RO), which, in pertinent part, denied the issues on appeal. In April 2022, the Veteran testified at a Board videoconference hearing before the undersigned Acting Veterans Law Judge, and the hearing transcript has been associated with the record.

Service Connection Legal Authority

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131;

38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires competent (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.

The Board notes that arthritis, including degenerative arthritis, is a "chronic disease" under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions of

38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b).

Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

1. Service Connection for Degenerative Arthritis of the Lumbar Spine with IVDS and Lumbar Radiculopathy.

The Veteran contends that service connection for a back disability is warranted due to injuries to the back in service. See December 201
even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

1. Service Connection for Degenerative Arthritis of the Lumbar Spine with IVDS and Lumbar Radiculopathy.

The Veteran contends that service connection for a back disability is warranted due to injuries to the back in service. See December 2017 notice of disagreement.

The evidence shows a current disability of degenerative arthritis of the lumbar spine with IVDS and lumbar radiculopathy. See November 2017 Back Conditions Disability Benefits Questionnaire (DBQ).

The Board has resolved reasonable doubt in the Veteran's favor in finding that the Veteran sustained injury to the back during service. Service treatment records from March 1988 indicated lower back pain for the last twenty-four hours after injuring the back the day before while lifting boxes in supply. There were no indications of back troubles at service entrance and the record does not contain a separation examination. See August 1986 report of medical history (denying recurrent back pain); see also August 1986 report of medical examination (denying spine or musculoskeletal issues).

The Veteran has provided credible lay statements and testimony of an onset of back pain during service due to injury. In private treatment records, the Veteran reported a back injury in service that has been chronic. See May 2017 private treatment records, but also see May 2017 private treatment records indicating lower back pain for two and a half years without precipitating trauma that has "really worsened" over the past two weeks.

In the November 2017 VA examination, the Veteran reported he injured his lower back a few days before leaving the service in 1991 while tossing heavy tents onto the back of a truck. The Veteran reported he experienced recurrent lower back pain since leaving service, but it started to get severe about two and a half years prior to the examination and it became disabling in February 2017.

In the December 2017 notice of disagreement, the Veteran reported that he initially injured the back in service while lifting heavy equipment in the supply room, which was treated in service by Motrin. His second back injury in service occurred when he was unloading tents from off the truck, and he "snapped" his back. He reported it was acknowledged during separation that he was having problems with his back. The Veteran reported that he has had continuous issues with the back.

In the April 2022 hearing, the Veteran provided testimony that he had three back injuries in service. The first injury involved a fall carrying a buffer on stairs during boot camp, which he believed he was given medicine for and then he continued training. The second back injury occurred in the field, where he suddenly felt the back snap and he required medevac care. The third back injury occurred in 1991, when he was offloading tents and he heard his back snap; he reported to the sick bay and had bed rest for a couple of weeks, but there was an issue with stationary to document the injury and the doctor told him he would include the note in his file later. He believed he was diagnosed with back sprain for the last injury. The Veteran reported he continued to have back pain since service.

The Veteran provided buddy statements from two fellow service members describing the Veteran's back problems in service. See May 2019 buddy statement (witnessing the Veteran twist the back during a forced march while carrying a pack, weapon, and gear, requiring a medevac team to get him to treatment); see also May 2019 buddy statement (describing the Veteran ordered to sick bay due to fatigue and back pain, as well as another back injury during a field exercise).

After review of all the evidence, lay and medical, and resolving reasonable doubt in the Veteran's favor, the Board finds the back disability was related to back injuries in service.

The Veteran was afforded a VA examination in November 2017 wherein the examiner opined that the back disability was less likely than not incurred in or caused by the claimed in-service injury. The examiner provided the rationale that there were no service treatment records supporting that the Veteran developed a chronic lumbar spine condition during active military service. However, the VA medical opinion is of little probative value as it dismisses the Veteran's lay reports, including for the purposes of treatment, of an onset of back pain during service that has remained continuous since service separation. See Dalton v.
all the evidence, lay and medical, and resolving reasonable doubt in the Veteran's favor, the Board finds the back disability was related to back injuries in service.

The Veteran was afforded a VA examination in November 2017 wherein the examiner opined that the back disability was less likely than not incurred in or caused by the claimed in-service injury. The examiner provided the rationale that there were no service treatment records supporting that the Veteran developed a chronic lumbar spine condition during active military service. However, the VA medical opinion is of little probative value as it dismisses the Veteran's lay reports, including for the purposes of treatment, of an onset of back pain during service that has remained continuous since service separation. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology that are not supported by contemporaneous clinical evidence does not render them inherently not credible).

The Veteran provided several private medical opinions relating the current back disability to in-service injuries. In the January 2018 private examination and opinion, the chiropractic physician indicated diagnoses and symptoms of L5-S1 herniated nucleus pulposus (HNP), low back pain, thoracic spine pain, muscle spasms of the back, lumbar radiculopathy, spinal instabilities of the sacral and sacrococcygeal region, and right knee pain. The clinician opined that the conditions were as most likely (51 percent probability or better) caused by or a result of activities while involved in the military. The opinion does not contain rationale for the opinion provided, so is inadequate for VA rating purposes on that basis and lacks probative value. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (holding that an opinion without any rationale against which to evaluate the probative value of the determination is inadequate).

In the February 2018 private opinion, the pain management physician indicated diagnoses and symptoms of lumbar HNP with radiculopathy, thoracic spine pain, lower back pain, right knee pain, and muscle spasms. The clinician opined that the conditions were as most likely (51 percent probability or better) caused by or a result of activities in service. The opinion does not contain rationale for the opinion provided, so is inadequate for VA rating purposes on that basis and lacks probative value.

In an April 2018 private examination and opinion by an orthopedist, the clinician indicated diagnoses and symptoms of lumbar HNP, lumber stenosis, retrolisthesis/ spondyloschisis at L5-S1, and right lower extremity pain. The clinician opined that the conditions were as most likely (51 percent probability or better) caused by or a result of activities in service. The clinician provided the rationale that examination, history, and imaging were consistent with twisting/lifting injuries as described by the Veteran in service from 1991. The clinician interviewed the Veteran, reviewed civilian medical records, and VA treatment records, and considered the lay statements of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the reasoning for the conclusion that contributes probative value to a medical opinion). Therefore, the private opinion from April 2018 weighs in favor of the Veteran's claim the that current back disability is related to service.

In the April 2018 opinion by a neurosurgeon, the clinician indicated diagnoses and symptoms of low back pain, disc degeneration, disc herniation, and right lower extremity pain. The clinician opined that the conditions were as most likely (51 percent probability or better) caused by or a result of activities in service. The opinion does not contain rationale for the opinion provided, so is inadequate for VA rating purposes on that basis and lacks probative value.

Considering the evidence discussed above, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for direct service connection for degenerative arthritis of the lumbar spine with IVDS and lumbar radiculopathy have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Because the Board has resolved reasonable doubt to find the degenerative arthritis of the lumbar spine with IVDS and lumbar radiculopathy is related to the in-service back injuries and is granting direct service connection on that basis under 38 C.F.R. § 3.303(a), all other theories of service connection are rendered moot.

REASONS FOR

REASONS FOR REMAND

2. Service Connection for Right Foot Condition.

3. Service Connection for Left Foot Condition.

The Veteran contends that a bilateral foot condition is a result of residuals of broken toes, spurs, and numbness in service. See September 2017 statement of Veteran. The Veteran also contends that carrying heavy training gear in service aggravated the bilateral pes planus. See January 2018 statement of Veteran.

For the reasons discussed in detail below, the Board finds that a remand is warranted as the Board cannot make a fully informed decision on the nature and etiology of any left and right foot condition. The record does not contain an opinion on whether the pre-existing pes planus was aggravated (worsened in severity) during service. Additionally, an opinion is needed to clarify if any left or right foot disability is related to the now service-connected back disability.

Service treatment records indicated that the Veteran's entrance examination noted bilateral pes planus, which was asymptomatic. See August 1986 service treatment records. Service treatment records also indicated swelling and pain on the left foot fourth and fifth toes for the last four to five weeks in February 1989.

Post-service private treatment records from an October 2017 podiatry appointment indicated the Veteran was diagnosed with plantar fascial fibromatosis, pain in right foot, pain in left toes, and other hereditary and idiopathic neuropathies. X-rays of both feet indicated no evidence of infracalcaneal spur, and no evidence of fracture or other bone pathology. In May 2022, the podiatrist offered updated diagnoses of pain in right foot, pain in left toes, and radiculopathy in the lumbar region. The podiatrist opined that the pain in the right and left foot were most likely caused by or a result of the stated history of back injury in service. The clinician provided the rationale that the Veteran presented for ongoing pain in both feet of a burning/ numb nature; the Veteran reported a history of back injury while in service and had ongoing problems since. During previous treatment in 2017, the Veteran had plantar fasciitis, but review of the clinician's notes revealed that he had secondary concerns of neuropathic pain that were related to the lumbar radiculopathy.

The Veteran was afforded a VA examination in November 2017, wherein the Veteran was diagnosed with bilateral plantar fasciitis. See November 2017 Foot Conditions DBQ. Although the examiner only diagnosed the Veteran with bilateral plantar fasciitis, and not pes planus, the Veteran's symptoms were indicated under the pes planus portion of the examination. The examiner opined that the plantar fasciitis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, providing the rationale that service treatment records did not support that the Veteran developed a chronic bilateral foot condition such as plantar fasciitis during active military service. The VA examination is inadequate because the examiner based the opinion on the absence of documented symptoms during service and did not include discussion of the Veteran's contentions. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that a VA examination was inadequate because the examiner relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion).

The Veteran testified that he had no foot issues prior to service and almost immediately he noticed in service that the boots bothered his feet. See April 2022 hearing transcript. He would take his boots off and rub his feet during breaks from marches, while other soldiers were getting water. He did not feel he could complain about foot pain unless he could not walk. When he complained in service, he was provided Motrin. He reported "a few broken toes on a few different occasions." He reported "breaking his feet" while running in boots and while playing basketball. He reported to sick bay, and they taped him up and gave him medication; they said there was nothing they could do with the foot
opinion).

The Veteran provided two separate buddy statements indicating that the Veteran would often complain about severe pain in the feet during road marches and witnessing the Veteran having back and foot issues during service. See May 2019 buddy statements.

Accordingly, remand for VA to obtain appropriate opinions on current disability of the left and right foot, direct and secondary service connection opinions for any foot disability, and aggravation of the preexisting pes planus is needed.

The aforementioned matters are REMANDED for the following action:

1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning the feet. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e).

2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran's feet, not already of record, for the period from December 2017.

3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left and right foot conditions.

The examiner must list any diagnosable left and right foot disabilities the Veteran may have. The examiner must address the asymptomatic bilateral pes planus indicated on the service enlistment exam in August 1986, diagnoses indicated on the private podiatry records from October 2017 and May 2022, and the November 2017 VA examination. If the Veteran does not have a diagnosed left and/or right foot disability, the examiner must explain why.

For each diagnosed left and right foot disability, the examiner must opine whether such condition(s) are at least as likely as not related to an in-service injury, event, or disease, including physical training exercises, the basketball injury reported by the Veteran, the injury to the left foot 4th and 5th toes as described in service treatment records, and the buddy statements from May 2019 describing ongoing foot issues in service.

Specific to the Veteran's preexisting bilateral pes planus, the VA examiner should first opine whether it is at least as likely as not (50 percent or higher degree of probability) that the Veteran's preexisting pes planus was aggravated (worsened in severity) during service. In answering this question, the examiner must address the buddy statements from May 2019. If the examiner finds that there was aggravation of the preexisting pes planus during service, the examiner should opine as to whether there is clear and unmistakable evidence that this aggravation was due to the natural progression of the condition.

For each diagnosed left and right foot disability, the examiner must opine whether such condition(s):

a) Is at least as likely as not caused by the service-connected degenerative arthritis of the lumbar spine with intervertebral disc syndrome and lumbar radiculopathy, and

b) Is it at least as likely as not worsened in severity by the service-connected degenerative arthritis of the lumbar spine with intervertebral disc syndrome and lumbar radiculopathy.

The examiner is advised that the Veteran is competent to report symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, the examiner should explain why.

E. Blowers

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board E. Beilsmith, Associate 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

Analyze in VA Law Explorer