INTERVERTEBRAL DISC SYNDROME

Summary

The Veteran, an Army Veteran who served from October 1995 to March 1996, appeals the denial of service connection for low back pain, bilateral shin splints, and bilateral lower extremity radiculopathy. The Board granted service connection for low back pain. The Veteran testified to sustaining two back injuries during annual reserve training in 1998, including a fall from a vehicle and a fall from a fuel trailer, for which he sought medical attention but has no documentation. The Board noted the absence of service treatment records (STRs) and that the Agency of Original Jurisdiction (AOJ) did not provide a VA examination or medical opinion for the low back claim. The Veteran submitted a private medical opinion from his treating physician, Dr. C.S., dated December 2024, who opined that the low back pain is highly likely a direct result of the in-service injuries, citing consistency with physical findings and lack of other risk factors. The Board found this opinion probative and adequate, resolving doubt in the Veteran's favor and granting service connection for low back pain. For bilateral shin splints and bilateral lower extremity radiculopathy, the Veteran testified to experiencing shin splints during boot camp but sought no treatment and has no current diagnosis. The AOJ also found no current diagnosis for these conditions. The Board noted the absence of any VA or private treatment records or opinions addressing these specific conditions, including the private opinion from Dr. C.S. which did not mention them. As the threshold element of a current disability was not met, service connection for shin splints and radiculopathy was denied.

Rationale

Favorable private medical opinion from treating physician; Resolving doubt in Veteran's favor; Missing service treatment records; No contrary VA opinion

Full Decision Text

Citation Nr: A26030286
Decision Date: 04/02/26	Archive Date: 04/02/26

DOCKET NO. 210526-162206
DATE: April 2, 2026

ORDER

Entitlement to service connection for low back pain is granted.

Entitlement to service connection for bilateral shin splints is denied.

Entitlement to service connection for bilateral lower extremity radiculopathy, to include as secondary to low back pain, is denied.

FINDINGS OF FACT

1. Resolving doubt in the Veteran's favor, the Veteran's low back pain is etiologically related to active duty service.

2. There is no competent medical evidence that the Veteran has been diagnosed with bilateral shin splints.

3. There is no competent medical evidence that the Veteran has been diagnosed with bilateral lower extremity radiculopathy.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for low back pain have been met.  38 U.S.C. §§ 1110, 1131, 5017, 7104; 38 C.F.R. §§ 3.102, 3.303, 4.3.

2. The criteria for entitlement to service connection for bilateral shin splints have not been met.  38 U.S.C. §§ 503, 1110, 1131, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 4.3.

3. The criteria for entitlement to service connection for bilateral lower extremity radiculopathy, to include as secondary to service-connected low back pain, have not been met.  38 U.S.C. §§ 503, 1110, 1131, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 4.3.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from October 1995 to March 1996.  He was awarded the National Defense Service Medal, among others.

Evidentiary Window

The rating decision on appeal was issued in April 2021; therefore, the modernized review system, known as the Appeals Modernization Act (AMA), applies.  In the May 2021 VA Form 10182, Decision Review Request: Board Appeal Notice of Disagreement (NOD), the Veteran elected the Hearing docket before a Veterans Law Judge.  A Board hearing was held in February 2025 with the undersigned Veterans Law Judge.  A transcript is of record.  Under the hearing docket, the Board is authorized to review the evidence considered by the Agency of Original Jurisdiction (AOJ) at the time of the April 2021 rating decision on appeal as well as evidence submitted at the Board hearing.  The Veteran waived the 90 day evidence submission window during the February 2025 Board hearing.  See Hearing Tr. at 13; 38 C.F.R. § 20.302(a).

Evidence provided during the hearing evidence submission window must be relevant to the period on appeal identified above.  Evidence submitted either 1) during the period after the AOJ issued the April 2021 rating decision on appeal and prior to the date the Board received the VA Form 10182 or 2) more than 90 days following the Board hearing was not considered by the Board in its decision.  38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran wishes to have the Board consider evidence submitted outside of the review window, a supplemental claim should be submitted identifying such evidence.  Cook v. McDonough, 36 Vet. App. 175 (2023); 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.

1. Entitlement to service connection for low back pain is granted.

The Veteran contends that his low back pain is related to his service.  See January 2020 VA Form 21-526EZ and February 2021 VA Form 20-0995.  By way of history, the Veteran filed his claim for service connection in January 2020.  See January 2020 VA Form 21-526EZ.  The claim was denied in the October 2020 rating decision on the basis that the Veteran had no diagnosis
, 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.

1. Entitlement to service connection for low back pain is granted.

The Veteran contends that his low back pain is related to his service.  See January 2020 VA Form 21-526EZ and February 2021 VA Form 20-0995.  By way of history, the Veteran filed his claim for service connection in January 2020.  See January 2020 VA Form 21-526EZ.  The claim was denied in the October 2020 rating decision on the basis that the Veteran had no diagnosis, no in-service event, no continuity of symptomology, and no nexus.  These findings were made despite the AOJ not providing a VA examination or medical opinion and despite finding that the Veteran's service treatment records were unavailable.  The Veteran submitted a supplemental claim in February 2021.  See February 2021 VA Form 20-0995.  The April 2021 rating decision again denied the claims on the same basis.  

Legal Principles

Direct Service Connection

Establishing direct service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  38 U.S.C. §§ 1110, 1131; Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also 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).

Missing Service Treatment Records (STRs)

A claimant bears the evidentiary burden to establish entitlement to the benefit sought including all elements of a service connection claim.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).  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.  Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

As noted in the April 2021 rating decision, the Board acknowledges that the Veteran's service treatment records cannot be located and have been determined to be unavailable for review.  See January 2020 and March 2020 Subsequent Development Letters; see also October 2020 Final Attempt Letter.  In situations where STRs are completely or partially unavailable, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule.  O'Hare v. Derwinski, 1 Vet. App. 365 (1991).  The legal standard is not lowered for proving a claim for service connection.  Rather, the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran is increased.  Russo v. Brown, 9 Vet. App. 46 (1996).  There is no presumption, either in favor of the claimant or against VA, arising from missing records.  Cromer v. Nicolson, 19 Vet. App. 215 (2005).

Benefit of the Doubt and Credibility

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition, (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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 
 is competent to report on the onset and continuity of his current symptomatology.  Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition, (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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; 38 U.S.C. § 7104(a).  Further, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.  When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other.  Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

Evidence and Analysis

The April 2021 rating decision did not include favorable findings.

During his February 2025 hearing, the Veteran testified that while on active duty orders for annual reserve training, he injured his back twice within a few days of each other.  The first was in 1998 during a unit exercise when he was exiting a military vehicle and missed a step causing him to slide all the way to the ground and land on his tail bone.  The second was when he was coming off of a fuel trailer and slipped, falling approximately four feet and landing on his back.  The Veteran indicated that he was seen by medical for the second injury but does not have documentation and was unable to locate the line of duty determination for this injury.  See Hearing Tr. at 9-10.

The Board notes that the AOJ did not provide the Veteran with a VA examination or medical opinion at any point within the appeal period.  See May 2020, two July 2020, and February 2021 Exam Requests.  The AOJ appears to indicate in the October 2020 and April 2021 rating decisions that the Veteran's treatment records did not indicate a qualifying event during service and no current diagnosis of record.  It is implied that this determination of no diagnosis and no in-service event justifies the AOJ not providing a VA examination or medical opinion for this condition.

On the day of the February 2025 Board hearing, the Veteran submitted a record of military orders, which specifically included the Veteran's name, indicating that the unit was "ordered to AT for the period" from June 13, 1998 to June 27, 
  See May 2020, two July 2020, and February 2021 Exam Requests.  The AOJ appears to indicate in the October 2020 and April 2021 rating decisions that the Veteran's treatment records did not indicate a qualifying event during service and no current diagnosis of record.  It is implied that this determination of no diagnosis and no in-service event justifies the AOJ not providing a VA examination or medical opinion for this condition.

On the day of the February 2025 Board hearing, the Veteran submitted a record of military orders, which specifically included the Veteran's name, indicating that the unit was "ordered to AT for the period" from June 13, 1998 to June 27, 1998, and then "return to home station and revert to inactive status."  The orders reference 10 U.S.C. § 672 as justification for ordering reserve component members to active duty.  A commanding officer signature is located at the bottom of the document.  See February 2025 Military Personnel Record.

Additionally, on the day of the February 2025 Board hearing, the Veteran provided a medical opinion from his primary care provider, private physician Dr. C.S., regarding the Veteran's claimed low back pain.  This medical opinion was dated December 2024.  See February 2025 Medical Treatment Record - Non-Government Facility.  Dr. C.S. noted that he has been the treating provider for this Veteran's back condition since July 2023 and that he had reviewed the Veteran's medical history including the circumstances of the Veteran's reported in-service injuries.  Dr. C.S. opined that it is highly likely that the Veteran's low back pain is a direct result of his in-service injuries.  As rationale, Dr. C.S. indicates that the mechanics and history of the Veteran's in-service injuries are consistent with the physical examination findings and chief complaints of the Veteran.  Dr. C.S. indicated that there are no other known risk factors that may have precipitated the Veteran's current low back pain.

Probative value is afforded to the February 2025 treating provider medical opinion.  Notably, Dr. C.S. offered a definitive opinion supported by a detailed rationale which directly contemplates the Veteran's diagnosed conditions, symptomology severity, and its relationship to the Veteran's service.  There is no evidence that Dr. C.S. misstated any relevant fact in providing the opinion.  As such, the Board finds the February 2025 treating provider medical opinion to be adequate.

There are no other direct service connection medical opinions of record.

Based on the above and resolving doubt in the Veteran's favor, the Board finds that the probative February 2025 treating provider medical opinion provides a positive nexus between the Veteran's low back pain and his Army service.  Additionally, as the AOJ declined to provide the Veteran with a medical examination and opinion, there is no medical evidence of record to indicate that these conditions are not related to military service.  Further, the Veteran has provided competent and credible testimony which is not contradicted by the record; indeed, the submitted June 1998 orders provided by the Veteran enhance the Veteran's credible report of injuries.  Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  As such, service connection for the Veteran's low back pain is warranted and the appeal is granted.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

2. Entitlement to service connection for bilateral shin splints is denied.

3. Entitlement to service connection for bilateral lower extremity radiculopathy, to include as secondary to low back pain, is denied.

The Veteran contends that he has bilateral shin splints and bilateral lower extremity radiculopathy that are due to service, or in the alternative, are secondary to his service-connected low back pain.  See January 2020 VA Form 21-526EZ and February 2021 VA Form 20-0995.

Legal Principles

The criteria for direct service connection, lay evidence, missing service treatment records, and benefit of the doubt are discussed above.

Secondary Service Connection

Establishing service connection on a secondary basis requires evidence sufficient to show that: (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310.  Secondary causation exists when, but for the
ulopathy that are due to service, or in the alternative, are secondary to his service-connected low back pain.  See January 2020 VA Form 21-526EZ and February 2021 VA Form 20-0995.

Legal Principles

The criteria for direct service connection, lay evidence, missing service treatment records, and benefit of the doubt are discussed above.

Secondary Service Connection

Establishing service connection on a secondary basis requires evidence sufficient to show that: (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310.  Secondary causation exists when, but for the service-connected disability, the non-service-connected disability was caused by a service-connected disability either in a direct, etiological way or via multiple steps in a causal chain.  Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023) (citations omitted).  Secondary aggravation exists when the non-service-connected disability not caused by a service-connected disability would be less severe were it not for a service-connected disability.  Id. at 1364.  For example, secondary aggravation may be established where the natural progression of the non-service-connected disability could have been arrested or improved but for the service-connected disability.  Id.

Current Disability

In the absence of proof of a current disability, there is no valid claim of service connection.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).

Evidence and Analysis

The October 2020 and April 2021 rating decisions found no favorable findings for these claimed conditions.

The Board notes that the Veteran testified in his February 2025 Board hearing that his shin splints began during boot camp, but he did not seek medical treatment because he did not want to be dropped to another class.  The Veteran testified that he reported shin splints to his medical provider during the evaluation of his second back injury but has no record of such.  The Veteran also testified that his shin splints come and go and that he does not have a current diagnosis of shin splints.  See Hearing Tr. at 8-12.

The AOJ noted in the October 2020 and April 2021 rating decisions that the Veteran did not currently have a diagnosis of a bilateral lower extremity radiculopathy or bilateral shin splints.  The AOJ did not provide the Veteran with a VA examination for these claims.  See May 2020, two July 2020, and February 2021 Exam Requests.

The Board has reviewed the record and notes that there are no VA or private treatment records within the claims file.  Additionally, the AOJ requested that the Veteran submit private treatment records, but no response from the Veteran or his representative was received.  See March 2020 Subsequent Development Letter.  As such, there are no medical treatment records, either VA or private, that indicate an established bilateral lower extremity radiculopathy or bilateral shin splint diagnosis of any sort.  This includes the private medical opinion provided with the February 2025 Board hearing.  Dr. C.S. did not address either bilateral lower extremity radiculopathy or bilateral shin splints in his medical opinion.  See February 2025 Medical Treatment Record - Non-Government Facility.

In the absence of proof of a current disability, there is no valid claim of service connection for the claimed conditions on either a direct or secondary service connection basis.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  At no time during this period on appeal was competent medical evidence submitted within the record, either private or VA, regarding a diagnosed bilateral lower extremity radiculopathy or bilateral shin splints condition.

As the threshold element of a service connection claim (a current disability) has not been met, service connection for bilateral lower extremity radiculopathy and bilateral shin splints must be denied.
mer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  At no time during this period on appeal was competent medical evidence submitted within the record, either private or VA, regarding a diagnosed bilateral lower extremity radiculopathy or bilateral shin splints condition.

As the threshold element of a service connection claim (a current disability) has not been met, service connection for bilateral lower extremity radiculopathy and bilateral shin splints must be denied.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).

In reaching this decision, the Board has considered the Veteran's assertions that he has the above claimed conditions.  While the Board notes that the Veteran is competent to report the symptoms which he experiences and what he is told by medical providers, there is no evidence of record to suggest that the Veteran has the medical training or expertise to opine on the diagnosis or etiology of the claimed conditions.  This is a complex question of nature and medical severity that falls outside the realm of the common knowledge of a lay person.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

In reaching this determination, the Board acknowledges that the Veteran was not afforded a VA examination for these claims.  On the facts and circumstances of this claim as discussed above, VA examinations are not required.  Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  These elements are conjunctive as set forth and, as such, all must be satisfied.  Here, there are no diagnoses of bilateral lower extremity radiculopathy or bilateral shin splints within the treatment records discussed above or any indication that such a condition exists.  Therefore, as the first McLendon factor has not been met for either the claimed bilateral lower extremity radiculopathy or bilateral shin splints, no VA examination is necessary.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

However, the Board encourages the Veteran to refile this claim should he receive such diagnoses in the future, and the AOJ will readjudicate the claim based on the evidence received.

The Board is sympathetic to the Veteran's assertions and grateful for his service, but the Board is bound and constrained by law, and its decision is dictated by the relevant statutes and regulations.  Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable.  38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  "[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress."  Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992).

The Board has also considered the doctrine of reasonable doubt; however, as the most persuasive evidence of record is against the Veteran's claims, the doctrine is not for application.  As such, these claims are denied.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (providing that only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).

 

 

Colleen M. Glaser-Allen

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Daniel Stephens, 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