DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

Summary

The Veteran, who served in the Texas Army National Guard with ACDUTRA from May 2013 to November 2013, appeals the denial of service connection for a lumbar spine disability and left lower extremity radiculopathy. The Board found that the Veteran had attained "veteran" status for his ACDUTRA period, allowing applicable presumptions to attach. For the lumbar spine, the Veteran presented current diagnoses of arthritis, spinal fusion, spinal stenosis, spondylolisthesis, and intervertebral disc syndrome. Service treatment records from his ACDUTRA period documented a sacroiliac strain and lower back pain, with a subsequent Line of Duty determination finding the low back pain presumed to have incurred during qualified duty. The Board found the evidence in relative equipoise, noting the Veteran's credible lay statements of continuous pain since service and a prior inadequate VA opinion. Resolving doubt in the Veteran's favor, service connection for the lumbar spine disability was granted. For left lower extremity radiculopathy, the Board found the evidence in relative equipoise regarding a current diagnosis, ultimately granting service connection based on the benefit of the doubt. The Board also acknowledged the service connection for the lumbar spine disability. However, a negative nexus opinion from a subsequent VA examiner was deemed inadequate as it did not consider the Veteran's lay reports or the established service connection for the lumbar spine. The claim for a left shoulder disability was remanded for further development, as the prior remand directives were not substantially complied with, and a new VA examination is required to determine if a current disability exists and if it is related to service.

Rationale

Evidence in relative equipoise; Benefit of the doubt resolved in Veteran's favor; Competent, credible lay statements of continuous pain; Inadequate VA opinion due to improper basis and failure to consider lay reports

Full Decision Text

Citation Nr: 25008837
Decision Date: 07/07/25	Archive Date: 07/07/25

DOCKET NO. 20-04 577
DATE: July 7, 2025

ORDER

Service connection for a lumbar spine disability is granted.

Service connection for left lower extremity radiculopathy, secondary to the service-connected lumbar spine disability, is granted.

REMANDED

Entitlement to service connection for a left shoulder disability is remanded.

FINDINGS OF FACT

1. The evidence is in relative equipoise as to whether the Veteran's currently diagnosed lumbar spine disability was incurred during a period of ACDUTRA.  

2. The evidence is in relative equipoise as to whether the Veteran is currently diagnosed with left lower extremity radiculopathy that is caused by his service-connected lumbar spine disability.

CONCLUSIONS OF LAW

1. Resolving all reasonable doubt in the Veteran's favor, 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. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for left lower extremity radiculopathy, as secondary to the Veteran's service-connected lumbar spine disability, are met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran, who is the appellant in this case, served in the Texas Army National Guard, to include a period of ACDUTRA from May 2013 to November 2013.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In February 2022, the Veteran testified at a virtual hearing before the undersigned Acting Veterans Law Judge.  A copy of the hearing transcript is of record and has been reviewed.

In December 2024, the Board dismissed the Veteran's claim for service connection for acid reflux and remanded the claims for service connection for a left shoulder disability and a lumbar spine disability for additional development.  The Board remanded the issue of entitlement to service connection for left lower extremity radiculopathy as inextricably intertwined with the remanded claim for service connection for a lumbar spine disability.

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, the appellant, and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015).

Service Connection Claims

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

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).  

In the context of Reserve or National Guard service, active military service is defined to include any period of ACDUTRA in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty.  38 U.S.C. § 101(24).  ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law.  See 38 U.S.C. § 101(22)(c); 38 C.F.R. § 3.6(c).  

While service on active duty alone is sufficient to meet the statutory definition of veteran, service on ACDUTRA without more, will not suffice to give one "veteran" status.  Donnellan v. Shinseki
 a disease or injury incurred or aggravated in the line of duty.  38 U.S.C. § 101(24).  ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law.  See 38 U.S.C. § 101(22)(c); 38 C.F.R. § 3.6(c).  

While service on active duty alone is sufficient to meet the statutory definition of veteran, service on ACDUTRA without more, will not suffice to give one "veteran" status.  Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010).  Before veteran status can be established for a period of such service, it must first be established that a claimant was disabled from a disease or injury incurred or aggravated in line of duty during ACDUTRA.  Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA unless "veteran" status is attained during those periods.  Paulson v. Brown, 7 Vet. App. 466, 470 (1995).  

Relevant here, arthritis is considered by VA to be a "chronic disease" as listed under 38 C.F.R. § 3.309(a).  Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply if "veteran" status is attained.  Where a veteran served ninety 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, unless the disease is clearly attributable to an intercurrent cause.  38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a).  

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination.  See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001)

1. Entitlement to service connection for a lumbar spine disability

The Veteran also asserts he is entitled to service connection for a lumbar spine disability that was incurred due to an injury during a period of ACDUTRA.

As discussed previously, the Veteran has attained "veteran" status for his period of ACDUTRA from May 2013 to November 2013, since in an October 2018 rating decision, the RO granted service connection for tinnitus and bilateral hearing loss as incurred during this period of ACDUTRA, and above, the Board granted service connection for a left shoulder disability as incurred during this period of ACDUTRA.  Accordingly, any applicable presumptions will attach to this period of ACDUTRA.

Next, the Veteran has current lumbar spine diagnoses, to include arthritis.  See, e.g., April 2018 VA "Back (Thoracolumbar Spine Conditions)" examination report (VA examiner diagnosed spinal fusion, spinal stenosis, and spondylolisthesis and found that arthritis was documented on imaging studies of the thoracolumbar spine); October 2020 VA "Back (Thoracolumbar Spine Conditions)" examination report (VA examiner diagnosed intervertebral disc syndrome (IVDS), degenerative disc disease of the lumbar spine, retrolisthesis, and residuals of spinal fusion).  Therefore, a current lumbar spine disability is established.

In a September 2013 STR rendered during the Veteran's period of ACDUTRA, the Veteran endorsed lower back pain for the previous 2 days and service medical personnel diagnosed him with back strain in the sacroiliac region and gave him a profile for light duty for 7 days.  See also October 2013 STR (Veteran endorsed lower back pain for the previous 3 weeks and requested a line of duty (LO
 VA "Back (Thoracolumbar Spine Conditions)" examination report (VA examiner diagnosed intervertebral disc syndrome (IVDS), degenerative disc disease of the lumbar spine, retrolisthesis, and residuals of spinal fusion).  Therefore, a current lumbar spine disability is established.

In a September 2013 STR rendered during the Veteran's period of ACDUTRA, the Veteran endorsed lower back pain for the previous 2 days and service medical personnel diagnosed him with back strain in the sacroiliac region and gave him a profile for light duty for 7 days.  See also October 2013 STR (Veteran endorsed lower back pain for the previous 3 weeks and requested a line of duty (LOD) determination for the injury he sustained during AIT); buddy statement from J.H. (corroborating the Veteran's diagnosis of back strain and a pinched nerve during AIT).  Notably, in a January 2020 Line of Duty Determination, the Veteran was found to have been injured in September 2013 and that his "condition of low back pain is presumed to have incurred during a qualified duty status of more than 30 days and established service connection for DES [Disability Evaluation System] referral."  Accordingly, an in-service event is established.

Thus, the remaining question before the Board is whether there is competent evidence of a nexus between the Veteran's current lumbar spine disability and his period of ACDUTRA.

On review, the Board finds that the evidence is in relative equipoise as to whether the Veteran's current lumbar spine disability was incurred during his period of ACDUTRA.

First, given the observable nature of low back pain, the Board finds the Veteran's lay statements that he has had low back pain since his injury during ACDUTRA to be competent, credible, and highly probative.  See October 2020 VA "Back (Thoracolumbar Spine) Conditions" examination report ("Veteran states that this condition started in 2013 while stationed at Fort Lee, VA.  He states that he woke up one morning and had severe pain.  The pain was increasing through[]out the years caused by overuse.  He had back surgery on March 21, 2016, th[at] fused his L4/L5.  He states that he still has low back pain [and] limited range of motion..."); February 2022 Board hearing transcript (Veteran testified that he has had continuous back pain since his in-service injury).  The Board finds it significant that in an April 2019 VA H & P note, the Veteran endorsed chronic lower back pain for 6 years, and that in a June 2019 VA physical medicine rehabilitation education consult, the Veteran stated that his back pain started during AIT in 2013, got progressively worse, leading to his March 2016 surgery, and that he still has occasional back pain since the surgery.  See also buddy statements from D.W. and P.H. received May 2019 (corroborating the ongoing nature of the Veteran's low back pain during subsequent periods of annual training in 2015 and 2016); October 2017 Physical Profile (permanent profile for "Lower Back Injury/Pain"); February 2023 VA nursing initial evaluation note (Veteran was found to have "chronic" back pain for years).

Second, in a January 2025 VA medical opinion, the VA examiner provided a negative nexus opinion as to direct service connection for the Veteran's lumbar spine disability, reasoning, in pertinent part, "During his [s]ervice he had a low back strain.  There is no evidence that he had spinal stenosis, spinal fusion, or spondylolisthesis during his [s]ervice.  Lumbar MRI in March 2016, was negative for all of the claimed conditions..."  On review, the Board finds the January 2025 VA medical opinion to be inadequate under Dalton v. Nicholson, 21 Vet. App. 23 (2007) to the extent that it is improperly based on the absence of evidence in the Veteran's STRs, and under Miller v. Wilkie, 32 Vet. App. 249, 258-60 (2020), as the VA examiner did not consider the Veteran's lay reports of continuing back pain since his in-service injury.  Therefore, the Board affords the January 2025 VA medical opinion no probative value.

The Board notes that it previously found the April 2018 VA medical opinion to be inadequate in its December 2024 Remand.

Third, the Board acknowledges that there is no positive nexus opinion of record regarding the Veteran's lumbar spine disability.  While a lay person is not always competent to relate past symptoms to a current diagnosis, in this case it is within the competence of
 the Veteran's STRs, and under Miller v. Wilkie, 32 Vet. App. 249, 258-60 (2020), as the VA examiner did not consider the Veteran's lay reports of continuing back pain since his in-service injury.  Therefore, the Board affords the January 2025 VA medical opinion no probative value.

The Board notes that it previously found the April 2018 VA medical opinion to be inadequate in its December 2024 Remand.

Third, the Board acknowledges that there is no positive nexus opinion of record regarding the Veteran's lumbar spine disability.  While a lay person is not always competent to relate past symptoms to a current diagnosis, in this case it is within the competence of a lay Veteran and the lay adjudicator to reach that conclusion based upon the observable nature of low back pain.  As determined above, the Board finds competent, credible, and highly probative the Veteran's lay statements that his low back pain began after his injury during a period of ACDUTRA and has continued thereafter.

In conclusion, given the approximate balance of positive and negative evidence in this matter, the Board will resolve all reasonable doubt in the Veteran's favor to find that service connection is warranted for a lumbar spine disability.  The appeal is therefore granted.

2. Entitlement to service connection for left lower extremity radiculopathy, as secondary to the Veteran's lumbar spine disability

The Veteran also asserts that service connection is warranted for left lower extremity radiculopathy, as secondary to his now service-connected lumbar spine disability.

As an initial matter, the Board finds that the evidence is in relative equipoise as to whether the Veteran has a current diagnosis of left lower extremity radiculopathy.  See private treatment records dated March 2016 (diagnosing radiculopathy of the lumbar region and left-sided low back pain with left-sided sciatica); October 2020 VA "Back (Thoracolumbar Spine) Conditions" examination report (finding that the Veteran had radiculopathy symptoms of mild intermittent pain, paresthesias, and/or dysesthesias in the left lower extremity with involvement of the left sciatic nerve); but see April 2018 VA "Back (Thoracolumbar Spine) Conditions" examination report (VA examiner found that the Veteran did not have radicular pain or any signs or symptoms due to radiculopathy); January 2025 VA medical opinion ("On the 2020, VA back C&P exam, [the Veteran] had normal motor function, normal sensation and normal reflexes.  Without objective signs of nerve impairment a diagnosis of radiculopathy is not accepted.").  Given the approximate balance of positive and negative evidence on this issue, the Board will resolve all reasonable doubt in the Veteran's favor to find that he has a current diagnosis of left lower extremity radiculopathy.  A current disability is therefore established.

Next, as discussed above, the Veteran is now service connected for a lumbar spine disability.

Thus, the remaining question before the Board is whether there is competent evidence of a nexus between the Veteran's current left lower extremity radiculopathy and his service-connected lumbar spine disability.

On review, the Board finds that the evidence is in relative equipoise as to whether the Veteran's current left lower extremity radiculopathy is caused by his service-connected lumbar spine disability.  Notably, the Veteran's private treatment provider specifically found that the Veteran had radiculopathy of the lumbar region, and the October 2020 VA examiner determined that the Veteran had radiculopathy of the left sciatic nerve, which involves the nerve roots of the L4, L5, S1, S2, and S3 vertebrae of the lumbosacral spine.  The Board acknowledges that the January 2025 VA examiner provided a negative nexus opinion as to whether the Veteran's left lower extremity radiculopathy was proximately due to or the result of the Veteran's lower back condition.  However, that opinion was based entirely upon the VA examiner's finding of a lack of a current diagnosis of left lower extremity radiculopathy and because "the spinal condition which could cause the claimed conditions did not exist during his [s]ervice."  As discussed above, the Board has determined that the Veteran has a current diagnosis of left lower extremity radiculopathy, and that service connection is warranted for the Veteran's lumbar spine disability.  Therefore, the Board finds the January 2025 VA medical opinion as to secondary service connection to be inadequate and affords it no probative value.

For these reasons, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for left lower extremity radiculopathy, as secondary to the Veteran
 of a lack of a current diagnosis of left lower extremity radiculopathy and because "the spinal condition which could cause the claimed conditions did not exist during his [s]ervice."  As discussed above, the Board has determined that the Veteran has a current diagnosis of left lower extremity radiculopathy, and that service connection is warranted for the Veteran's lumbar spine disability.  Therefore, the Board finds the January 2025 VA medical opinion as to secondary service connection to be inadequate and affords it no probative value.

For these reasons, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for left lower extremity radiculopathy, as secondary to the Veteran's now service-connected lumbar spine disability.  The appeal is therefore granted.

REASONS FOR REMAND

1. Entitlement to service connection for a left shoulder disability is remanded.

In December 2024, the Board remanded this matter to obtain an addendum medical opinion as to the etiology of the Veteran's claimed left shoulder condition.  Specifically, the Board directed the RO to obtain an addendum medical opinion that indicated whether the Veteran has a currently diagnosed left shoulder disability, and to provide an opinion as to whether each currently diagnosed left shoulder disability is at least as likely as not caused by service.  The Board further directed that, if the VA examiner determined that a current diagnosis of the left shoulder was not shown, the examiner should determine whether the Veteran has any pain or impairments of the left shoulder that cause functional impairment of earning capacity.  The Board specifically stated that the examiner should address the relevance, if any, of the August 2019 letter from the Veteran's treating physician noting a diagnosis of a partially torn rotator cuff, as well as the September and October 2013 service treatment records documenting reports of and treatment for left shoulder pain and lay and medical evidence reflecting reports of left shoulder pain subsequent to the Veteran's period of ACDUTRA.

In a January 2025 VA addendum medical opinion, a VA examiner did not provide an opinion as to whether the Veteran has a currently diagnosed left shoulder disability.  To the contrary, the examiner focused on the August 2019 letter from the Veteran's treating physician noting a diagnosis of a partially torn rotator cuff and providing an opinion that any such rotator cuff tear was not related to service.  The examiner opined that the Board's question as to whether the Veteran has a current left shoulder disability "is moot since none of the shoulder limitations are due to his time in service" and further stated that there was insufficient information to determine whether there was a current disability.  Thus, another remand is required, as there has not been substantial compliance with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders).  In doing so, the Board emphasizes that the question of whether there is a currently diagnosed left shoulder disability, and the specific diagnosis, inherently must be answered prior to determining whether any such disability is related to service.

The matters are REMANDED for the following action:

1. The entire claims file, including a copy of this Remand, should be made available to, and be reviewed by, the VA examiner.  All appropriate tests, studies, and consultation should be accomplished, and all clinical findings should be reported in detail.

After examination of the Veteran and review of the claims file, the examiner must provide the following opinions:

a.) Indicate whether the Veteran has a current left shoulder disability.

***In doing so, the examiner shall address the relevance, if any, of the August 2019 letter from the Veteran's treating physician noting a diagnosis of a partially torn rotator cuff, which was added to the claims file in February 2020.

b.) If a currently diagnosed left shoulder disability is not shown, determine whether the Veteran has any pain or impairments of the left shoulder that cause functional impairment of earning capacity.

c.) For EACH currently diagnosed left shoulder disability and/or left shoulder pain or symptoms causing functional impairment, provide an opinion as to whether such disability is at least as likely as not caused by service.

***In doing so, the examiner shall address the relevance, if any, of the Veteran's September and October 2013 service treatment records documenting reports of and treatment for left shoulder pain, as well as the lay and medical evidence reflecting reports of left shoulder pain subsequent to the Veteran's period of ACDUTRA.

A detailed rationale should be provided for all opinions rendered.

2. Then, readjudicate the remaining issue on appeal.

 

 

Megan R. Thomas

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. M. Gill, Counsel