FLATFOOT BILATERAL ACQUIRED

JONATHAN HAGER · 2026 · Case ID: A26021270

GRANTED

Summary

The veteran, who served in the Army from August 2005 to August 2009, appeals the denial of service connection for bilateral pes planus and a low back disability. The Board reviewed evidence including service treatment records, VA examinations, and the veteran's lay statements. The veteran reported experiencing bilateral foot pain since service, exacerbated by rigorous training and wearing combat boots, and was noted to have mild, asymptomatic pes planus at entry. A VA podiatrist diagnosed bilateral flat feet, and a later VA examination confirmed pes planus. The Board found the veteran's lay statements credible and consistent with the medical evidence, particularly a private DBQ that opined the pes planus was incurred and aggravated by military duties. Although service treatment records were silent regarding foot complaints during service, the Board found the evidence evenly balanced regarding aggravation and applied the benefit of the doubt, granting service connection for bilateral pes planus on an aggravation basis. For the low back condition, the Board recharacterized the claim as lumbar strain. Service treatment records noted low back pain following an in-service motor vehicle accident in 2006, and the veteran reported continuous pain and sought VA treatment post-service. A VA examination in August 2019 diagnosed lumbar strain, and a subsequent private DBQ noted mechanical back pain syndrome with radiculopathy. The Board found the initial VA negative nexus opinion inadequate for failing to consider the veteran's lay statements and the continuity of symptoms. Conversely, a private DBQ provided a favorable opinion linking the lumbar strain to the in-service accident and subsequent duties. The Board found the evidence evenly balanced for lumbar strain, granting service connection with the benefit of the doubt. The Board also granted service connection for bilateral lower extremity sciatic radiculopathy and bilateral hip disability, secondary to the now service-connected lumbar strain, based on favorable private medical opinions and the benefit of the doubt.

Rationale

Preexisting pes planus noted at entry; Aggravated by military duties; Credible lay statements regarding continuity and worsening of symptoms; Private DBQ opined incurred and aggravated by military duties; Evidence evenly balanced, benefit of doubt resolved in favor of veteran

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210226-146572

Full Decision Text

Citation Nr: A26021270
Decision Date: 03/10/26 Archive Date: 03/10/26

DOCKET NO. 210226-146572
DATE: March 10, 2026

ORDER

Entitlement to service connection for bilateral pes planus on an aggravation basis is granted.

Entitlement to service connection for lumbar strain is granted.

Entitlement to service connection for bilateral lower extremity sciatic radiculopathy, secondary to now service-connected lumbar strain, on a causation basis, is granted.

Entitlement to service connection for a bilateral hip disability, manifesting as pain and weakness, secondary to now service-connected lumbar strain, on a causation basis, is granted.

FINDINGS OF FACT

1. The evidence is approximately evenly balanced as to whether the Veteran's bilateral pes planus, noted at entry into service and therefore considered a preexisting disability, was aggravated by active duty service and the current pes planus is related to this aggravation.

2. The evidence is at least evenly balanced as to whether the Veteran's lumbar strain is related to an in-service injury.

3. The evidence is at least evenly balanced as to whether the Veteran's bilateral lower extremity sciatic radiculopathy is caused by her now service-connected lumbar strain.

4. The evidence is at least evenly balanced as to whether the Veteran's bilateral hip disability is caused by her now service-connected lumbar strain.

CONCLUSIONS OF LAW

1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral pes planus, on the basis that a preexisting disability was aggravated by active military service, are met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306.

2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for lumbar strain have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303.

3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral lower extremity sciatic radiculopathy, secondary to lumbar strain, on a causation basis, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hip disability, secondary to lumbar strain, on a causation basis, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 2005 to August 2009.

This case comes before the Board of Veterans' Appeals (Board) from an October 2020 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Prior to that decision, in September 2019, the RO denied entitlement to service connection for bilateral pes planus and a low back disability. The Veteran filed a supplemental claim in August 2020. In the rating decision on appeal, the RO found that new and relevant evidence had been received, and continued the previous denial of entitlement to service connection for bilateral pes planus and a low back disability.

In the February 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on July 1, 2024 and a copy of that transcript has been associated with the Veteran's claims file.

Therefore, the Board may only consider the evidence of record at the time of the October 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a
agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

As for characterization of the issues on appeal, the evidence reflects that the Veteran experiences bilateral lower extremity sciatic radiculopathy and a bilateral hip disability manifesting as pain and weakness associated with her lumbar strain for which service connection is being claimed. 38 C.F.R. § 3.155(d)(2) requires that, when entitlement to secondary service connect ion is raised, a formal claim for secondary service connection need not be filed, rather, VA must consider those "complications" in connection with the claim on appeal. This rule applies in the service connection context as well as the rating context. Grimes v. McDonough, 34 Vet. App. 84, 89 (2021) (a claim for service connection can include all diagnoses found during the claim's development that relate to the symptomatology asserted by the veteran). Therefore, the Board has expanded the appeal to include the separate issues of entitlement to service connection for bilateral lower extremity sciatic radiculopathy and bilateral hip disability secondary to lumbar strain. In addition, the Veteran's claim for lower back condition has been recharacterized as lumbar strain based on the medical evidence of record.

Service Connection

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service 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 may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a).

Entitlement to service connection for bilateral pes planus on an aggravation basis is granted.

During her Board hearing and her October 2020 VA examination, the Veteran stated that she experienced bilateral foot pain that began in service as a result of wearing combat boots and engaging in rigorous physical training. She specifically recalled pain, burning, and numbness in her feet after long runs, and needing to wait until feeling returned to her feet before she could drive; she states she was not seen while in the service for her foot pain or condition. Finally, during her Board hearing and VA examination, she reported that her bilateral foot pain has increased since separation from service and that she experiences sharp burning pain on the bottom and top of her feet, and around the ankles.

As favorably found by the AOJ, a May 2018 VA treatment record shows the Veteran's report of bilateral foot pain, and that she has been diagnosed with a disability. The Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). Following her reports of foot pain, in February 2019, a VA podiatrist assessed the Veteran as having a high arch (pes cavus) that functions as pes planus (functional planus) when bearing weight, causing pain (arthralgia) on the top of the foot (dorsal). Additionally, the October 2020 VA examination report contains a diagnosis of bilateral flat feet. Based on
.

Additional laws and regulations pertain to this claim. A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term "noted," in 38 U.S.C.A. § 1111, refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994).

Here, on the July 2005 enlistment examination report, the Veteran was noted to have abnormal feet; the physician circled that the Veteran had pes planus, noting that the pes planus was mild and asymptomatic. This constitutes notation of a preexisting defect. Amezquita v. McDonough, 135 F.4th 1369, 1372 (Fed. Cir. 2023) ("an asymptomatic condition can be noted as a preexisting defect under section 1111"); Verdon v. Brown, 8 Vet. App. 529, 535 (1996) ("even though the veteran's bunions may have been asymptomatic at the time of his induction, they were 'noted' on the Navy induction medical examination report and the accompanying orthopedic examination report... The Board therefore was not in error in determining that the bunion disorder was a preexisting condition"). Thus, although the Veteran had separately marked on her July 2005 report of medical history that she did not have foot trouble, the presumption of soundness does not apply with regard to pes planus in this case.

The relevant issue becomes whether the Veteran experienced an aggravation of preexisting pes planus in active duty service. Aggravation of a preexisting injury may not be conceded where the disability underwent no increase in severity during service, on the basis of all the medical evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). Temporal or intermittent flare-ups of the preexisting disorder during service are not sufficient to be considered aggravation unless the underlying disability (as contrasted to symptoms) has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991).

If the preexisting disorder underwent an increase in severity during service, it is presumed to have been aggravated by service unless there is clear and unmistakable evidence that the increase was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012) ("There is a related but distinctly different statutory provision that pertains to cases in which a preexisting condition is noted on an entrance examination and the claimant contends that this condition was aggravated in service. This provision is known as the "presumption of aggravation"). The term "clear and unmistakable evidence" means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). It is an "onerous" evidentiary
3; 38 C.F.R. § 3.306(b); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012) ("There is a related but distinctly different statutory provision that pertains to cases in which a preexisting condition is noted on an entrance examination and the claimant contends that this condition was aggravated in service. This provision is known as the "presumption of aggravation"). The term "clear and unmistakable evidence" means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003).

For the following reasons, service connection for bilateral pes planus is warranted based on aggravation of a preexisting disability.

In October 2020, a VA nurse practitioner provided a direct service connection, opining that "it was at least as likely as not the [V]eteran's bilateral pes planus incurred in or was caused by service as evidenced by diagnosis of bilateral pes planus on entrance exam dated 07/09/2005." The nurse practitioner reasoned that, because the Veteran's service treatment records were "silent for complaint or condition of the feet while active duty service," and the "Veteran denied being seen for foot complaint or condition while active duty service," a nexus has not been established.

Although the nurse practitioner did not provide an opinion as to whether the Veteran's preexisting pes planus was clearly and unmistakably aggravated beyond its natural progression by an in-service injury or disease, the clinician nevertheless relied on the absence of service treatment records documenting complaints related to bilateral foot pain. For this reason, the opinion is inadequate given that the VA nurse practitioner did not consider the Veteran's lay statements regarding continuous bilateral foot pain symptoms both in and since separation from service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence").

The Veteran submitted a foot conditions, including pes planus, disability benefits questionnaire (DBQ) in August 2020. The clinician recorded the July 2005 diagnosis of pes planus and reports of foot pain beginning during service and progressing following separation. The clinician considered the Veteran's bilateral asymptomatic pes planus noted on her report of medical examination at entry, and considered the Veteran's reports that she first felt pain, burning and numbness in her feet after a long run. After this, the Veteran continued her duties and physical training that included training while wearing heavy rucksacks and non-supportive boots, further exacerbating her foot pain. The clinician opined that it "is more likely than not that her bilateral pes planus was incurred and aggravated by her military duties in the United States Army."

The fact that the Veteran's foot symptoms worsened during service, based on her credible and competent lay statements, reflects that an increase in the severity of the pes planus occurred and therefore the Board must presume aggravation by service under 38 U.S.C. § 1153. The remaining question is whether there is clear and unmistakable evidence that the increase was due to the natural progress of the disease. There is no such evidence in this case, as the medical opinions did not indicate that the increase was due to the natural progress of the disease and there is no other evidence so indicating.

The remaining question is whether the current disability is related to the in-service aggravation. The Veteran's lay statements indicate that she has experienced continuous bilateral foot pain symptoms both in and since separation from service. Buchanan, 451 F.3d at 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The Board finds the Veteran's reports credible and therefore competent given their consistency throughout the appeal period. As the clinician providing the August 2020 DBQ and opinion considered the Veteran's competent and credible statements, the opinion is adequate and entitled to substantial probative weight in finding that the Veteran's bilateral pes planus is related to the in-service aggravation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical
451 F.3d at 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The Board finds the Veteran's reports credible and therefore competent given their consistency throughout the appeal period. As the clinician providing the August 2020 DBQ and opinion considered the Veteran's competent and credible statements, the opinion is adequate and entitled to substantial probative weight in finding that the Veteran's bilateral pes planus is related to the in-service aggravation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning").

For the above reasons, the evidence is approximately evenly balanced as to whether the Veteran's preexisting bilateral pes planus noted at entry into service was aggravated by service and the current pes planus is related to this aggravation. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral pes planus on an aggravation basis is therefore warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Entitlement to service connection for lumbar strain is granted.

Entitlement to service connection for bilateral lower extremity sciatic radiculopathy, secondary to now service-connected lumbar strain, on a causation basis, is granted.

Entitlement to service connection for bilateral hip disability, manifesting as pain and weakness, secondary to now service-connected lumbar strain, on a causation basis, is granted.

As favorably found by the AOJ, a November 2018 VA treatment record shows that the Veteran was seen for chronic low back pain with diagnostic testing showing L5 vertebral body may be partially sacralized and lower lumbar paraspinals. In addition, the August 2019 VA examination report shows a diagnosis of lumbar strain. The Board is bound by this favorable finding, 38 C.F.R. § 3.104(c), and the current disability requirement has thus been met with respect to lumbar strain.

The Veteran submitted a back conditions DBQ in August 2020 that shows a diagnosis of bilateral lower extremity sciatic radiculopathy.

Regarding the Veteran's bilateral hip disability, a June 2018 VA treatment record shows the Veteran's complaints of prolonged shooting pain beginning on the left side of her back and moving towards her left hip. The pain then traveled to her "right lower level"; she stated that it hurts to sit up, lay down some ways, and even sit in a car. The Veteran attended VA physical therapy for her low back pain in November 2018. A VA treatment record reflects the Veteran's complaints of radicular symptoms in the right hip once per month, with a duration of 7 years. The therapist observed reduced strength in both hips with extension and abduction, and assessed chronic low back pain "with weak hip and core musculature contributing to compensatory movement patterns." During her back conditions VA examination in August of 2019, the Veteran reported "intermittent sharp pain from the lower back going into both buttock/hip area." Based on the Veteran's reports of shooting intermittent pain into both hips causing functional impairment and observed weakness in both hips, the Board finds that the Veteran has a current bilateral hip disability, manifesting as pain and weakness. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (pain alone can serve as a disability for VA compensation purposes if it rises to the level of functional impairment that affects earning capacity). Therefore, the current disability requirement has been met for bilateral lower extremity sciatic radiculopathy and a bilateral hip disability manifesting as pain and weakness.

In its September 2023 rating decision, the AOJ favorably found that the evidence shows that a qualifying event, injury or disease was incurred during the Veteran's service. Specifically, a March 2006 service treatment record shows complaints of lower back pain post motor vehicle accident 10 days prior, assessed as backache, presumably muscular in nature. During her Board hearing and her August 2019 VA examination, the Veteran reported that during service in 2006, she was rear ended in a motor vehicle accident. The next day, she began to experience low back pain, and as the service treatment record reflects, sought medical treatment 10 days after the accident; that record further notes that the Veteran reported constant, achy back pain assessed as a five out of 10, with the Veteran recalling that while she was wearing a seatbelt, the airbags did not deploy. She was treated with Tramadol. Separately
6 service treatment record shows complaints of lower back pain post motor vehicle accident 10 days prior, assessed as backache, presumably muscular in nature. During her Board hearing and her August 2019 VA examination, the Veteran reported that during service in 2006, she was rear ended in a motor vehicle accident. The next day, she began to experience low back pain, and as the service treatment record reflects, sought medical treatment 10 days after the accident; that record further notes that the Veteran reported constant, achy back pain assessed as a five out of 10, with the Veteran recalling that while she was wearing a seatbelt, the airbags did not deploy. She was treated with Tramadol. Separately, during her Board hearing, the Veteran reported that her in-service pregnancy contributed to her lower back pain. Following the birth of her child, the Veteran experienced rib pain, causing her to curve her back to reduce the pain. Service treatment records show the Veteran's complaints of low back pain while pregnant in April 2007, and complaints of lower back and rib pain following a 4-mile ruck march in March 2008. The Veteran also stated during her Board hearing that she reported her back pain at separation, with the physician attributing it to her pregnancy, and not recording the complaint. Based on the AOJ's favorable finding and service treatment records, the in-service injury requirement has been met with respect to lumbar strain.

Following separation from service, the Veteran stated that she did not immediately seek medical treatment for her low back pain because of a later pregnancy and financial distress, including experiencing homelessness. The first VA record available from March 2016 shows the Veteran requesting help to find housing after an eviction.

During her initial VA primary care appointment in June 2016, she reported chronic back pain for the past 8 years that "commenced while in the service." From that time, the Veteran reported chronic back pain to VA, rated as a five out of 10, including in October 2018 (pain across lower back, with the level depending on activity), February 2019 (chronic low pain back has not improved and ranged from 6 to 8 out of ten in the past week), and April 2019.

The Veteran attended a back conditions VA examination in August of 2019. The Veteran reported that her low back pain started when she was involved in a car accident while in service and she was seen for her back pain during that time and before discharge; she believed that her pain could have related to pregnancy, but the pain continued and worsened after pregnancy. She reported that her low back pain is constant, aggravated with sitting, bending and lifting, and she wears a back brace. The Veteran further reported intermittent sharp pain from the lower back going into both buttock and hip area, but that it did not radiate into the legs or thighs. The physician marked that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The physician provided a negative direct service connection opinion because although the Veteran was seen one time for acute low back pain after a car accident in March 2006, she was not evaluated again for back pain until October 2018.

The Veteran provided a back conditions DBQ in August 2020. The physician recorded a diagnosis of mechanical back pain syndrome, with the date of diagnosis as March 2006, and radiculopathy, with the date of diagnosis as August 2020. The physician recorded the Veteran's statement that she was injured during a rear end motor vehicle accident in 2006. In the muscle strength testing, the physician recorded strength four out of five in the right leg, reflecting active movement against some resistance, for all areas tested (hip flexion, knee flexion and extension, ankle plantar flexion, ankle dorsiflexion, foot abduction and adduction, and great toe extension), and three out of five for the left leg, reflecting active movement against gravity, for all areas tested. In the sensory examination section, the physician recorded decreased sensation to light touch at the right anterior thigh, right thigh and knee, right lower leg and ankle, and right foot and toes, with the sensory examination results normal for the left leg. The physician further recorded positive straight leg raising tests for the right and left leg and marked the following: moderate constant pain in the right lower extremity and severe constant pain in the left lower extremity; severe intermittent pain in the right lower extremity and moderate intermittent pain in the left lower extremity; severe paresthesias and/or dysesthesias in the right and left lower extremities; and severe right lower extremity numbness and moderate left lower extremity numbness. The physician marked involvement of the sciatic nerve roots
recorded decreased sensation to light touch at the right anterior thigh, right thigh and knee, right lower leg and ankle, and right foot and toes, with the sensory examination results normal for the left leg. The physician further recorded positive straight leg raising tests for the right and left leg and marked the following: moderate constant pain in the right lower extremity and severe constant pain in the left lower extremity; severe intermittent pain in the right lower extremity and moderate intermittent pain in the left lower extremity; severe paresthesias and/or dysesthesias in the right and left lower extremities; and severe right lower extremity numbness and moderate left lower extremity numbness. The physician marked involvement of the sciatic nerve roots, as severe in the left lower extremity and moderate in the right lower extremity, also noting that when the Veteran relieves her bowels, her low back pain radiates into her hips and legs.

In the clinician's August 2020 opinion, he stated that following the motor vehicle accident, the Veteran still completed briefings, long walks, and constantly sat during her desk during service, all of which exacerbated her low back pain. Following having her child, the physician noted that the Veteran completed a full gear march wearing a 60 pound ruck sack in 2008, causing pain in her ribs and back. She returned to duty, with her low back pain increasing. The clinician determined that the Veteran's statements are medically consistent with the examination findings and that her current disorders of mechanical back pain syndrome, bilateral lower extremity radiculopathy, and low back pain radiating into both hips are the result of her in service motor vehicle accident, physical trainings, and military duties in the United States Army.

The Veteran is competent to report the onset and persistent nature of the observable low back symptoms, including constant aching, intermittent sharp pain, and radiating pain to her bilateral hips and right and left lower extremities. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report observations). Further, the Veteran's lay evidence concerning her continuity of symptoms is competent regardless of the lack of treatment records discussing the frequency or severity of the symptoms from separation until diagnosis. See Buchanan, 451 F.3d at 1337.

The VA physician providing the August 2019 opinion determined that the Veteran's March 2006 low back pain following the car accident was acute, despite the Veteran seeking medical care 10 days after the accident and reporting constant pain, as well as the Veteran's reports of back pain in March 2007 and April 2008 following a ruck march. This determination, as well as the absence of medical records relating to treatment or diagnosis of low back pain until October 2018, served as an impermissible basis for the negative nexus opinion. See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (stating that the Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (stating that "[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence."). As the physician did not provide any basis for determining that the back pain was acute, did not account for other service treatment records showing low back pain continuing during service, and did not consider the Veteran's competent and credible statements regarding the continuity and progression of her low back pain following separation until VA treatment, the opinion is inadequate and entitled to no probative value on the issue of direct service connection. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding that an examiner impermissibly ignored the appellant's lay assertions that he had sustained a back injury in service).

In contrast, the clinician providing the August 2020 opinion considered the service treatment records, the Veteran's lay statements regarding the in-service injury and continuity and worsening of her symptoms, including bilateral hip pain and lower extremity radiculopathy, and considered whether her reports were consistent with the examination results. For this reason, that opinion is adequate and afforded substantial probative weight in finding that the Veteran's low back disability is related to service, and her bilateral hip disability and bilateral lower extremity radiculopathy is caused by her now service-connected low back disability. See Nieves-Rodriguez, 22 Vet. App. at 304 ("The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the
, the Veteran's lay statements regarding the in-service injury and continuity and worsening of her symptoms, including bilateral hip pain and lower extremity radiculopathy, and considered whether her reports were consistent with the examination results. For this reason, that opinion is adequate and afforded substantial probative weight in finding that the Veteran's low back disability is related to service, and her bilateral hip disability and bilateral lower extremity radiculopathy is caused by her now service-connected low back disability. See Nieves-Rodriguez, 22 Vet. App. at 304 ("The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.").

For the above reasons, the evidence is at least evenly balanced as to whether the Veteran's lumbar strain is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for lumbar strain is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Moreover, the evidence is approximately evenly balanced as to whether the Veteran's bilateral lower extremity sciatic radiculopathy and bilateral hip disability were caused by her now service-connected lumbar strain. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral lower extremity sciatic radiculopathy and bilateral hip disability, with both disabilities secondary to now service-connected lumbar strain, is warranted. Id.

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board H. T. Mowell, 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. § 20.1303.

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