INTERVERTEBRAL DISC SYNDROME

Summary

The veteran, who served from October 2007 to May 2009, appeals the denial of service connection for a back disability and for right and left lower extremity radiculopathy as secondary to the back condition. The veteran reported an in-service fall in Kuwait from approximately 10 feet onto his back, which he stated caused him back pain during service, although service treatment records did not explicitly document this back injury, focusing instead on electrocution effects. A fellow service member corroborated the fall and the veteran's subsequent back pain. While service treatment records were silent on back issues, the Board found the consistent lay and medical evidence over 12 years, including a witness statement and the veteran's own testimony, established the in-service event. The Board applied the benefit of the doubt, finding the evidence in equipoise, to grant service connection for the back disability. A private examiner opined the current back disability was highly likely due to the in-service fall, providing a pathological explanation. The Board also granted service connection for right and left lower extremity radiculopathy as secondary to the service-connected back disability, finding sufficient evidence of a connection based on consistent diagnoses and treatment history linking radiculopathy to the back condition. Service connection for the back disability and the secondary radiculopathies was granted.

Rationale

In-service fall in Kuwait; Lay and medical evidence shows consistent story of injury; Private examiner opined highly likely due to fall; Benefit of doubt resolved in veteran's favor

Full Decision Text

Citation Nr: A26039254
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 210813-179654
DATE: April 28, 2026

ORDER

Service connection for a lumbosacral strain, degenerative arthritis, lumbar retrolisthesis, a vertebral fracture, and degenerative disc disease (DDD) ("back disability") is granted.

Service connection for right lower extremity radiculopathy as secondary to the service-connected back disability is granted.

Service connection for left lower extremity radiculopathy as secondary to the service-connected back disability is granted.

FINDINGS OF FACT

1. The evidence shows current diagnoses of a lumbosacral strain, degenerative arthritis, lumbar retrolisthesis, a vertebral fracture, and DDD. 

2. There was a back injury due to a fall during service. 

3. The current back disability is etiologically related to service.

4. The current right and left lower extremity radiculopathy disabilities were caused by the now service-connected back disability.

CONCLUSIONS OF LAW

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

2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for right lower extremity radiculopathy as secondary to the service-connected back disability are met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.1593, 3.303, 3.310(a).

3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for left lower extremity radiculopathy as secondary to the service-connected back disability are met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.1593, 3.303, 3.310(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran, who is the appellant, had active service from October 2007 to May 2009.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2021 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA) or modernized review system, created a new framework of review for veterans who disagree with VA's decision on their claim.  In the August 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Board Hearing docket.

In this AMA case, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal (June 30, 2021) and evidence submitted at and within 90 days of the March 2025 Board hearing.  38 C.F.R. § 20.302.  The Board cannot consider evidence submitted during the period after the AOJ issued the decision on appeal or evidence submitted more than 90 days after the March 31, 2025, Board hearing.  38 C.F.R. § 20.302.

In March 2025, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the electronic claims file.

SERVICE CONNECTION LEGAL AUTHORITY 

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).  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).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  

Service connection may also be established on a?secondary?basis for a disability which is proximately due to or the result of service-connected disease
0; 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).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  

Service connection may also be established on a?secondary?basis for a disability which is proximately due to or the result of service-connected disease or?injury.  38?C.F.R. § 3.310(a).  Establishing service connection on a?secondary?basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.

1. Service connection for the back disability is granted.

The Veteran appeals for service connection for a back disability, diagnosed as a lumbosacral strain, degenerative arthritis, and DDD by VA in December 2020 and June 2021, and for lumbar retrolisthesis and a vertebral fracture, diagnosed by a private examiner in October 2018, as directly related to an in-service fall.  See September 2016, January and March 2020 VA Forms 21-526EZ; April 2021 Supplemental Claim; June 2021 request for Higher-Level Review; August 2021 substantive appeal to the Board.

The evidence is at least in relative equipoise on the question of whether there was a back injury during service.  The Veteran has reported that during deployment in Kuwait he was electrocuted and fell at least 10 feet from a ladder onto his back.  See September and December 2012, May 2013, February and August 2014, February 2019, February, March, and April 2020 VA treatment records; December 2020 and June 2021 VA examination reports.  

In October 2018, a fellow service member reported to VA that he witnessed this in-service fall and remembers that later that day the Veteran reported back pain but was treated for heart symptoms only.  The service member reported that after the back injury the Veteran could no longer lift or move heavy objects or stand for more than a short period of time.  

A January 2009 service treatment record shows treatment for an electrocution injury that caused heart palpitations.  The Veteran has testified that medical professionals during service were more concerned about heart effects due to the fall but that he still had back pain during service.  The Veteran has testified to being treated with topical pain patches after the injury.  See March 2025 Board hearing transcript.  At a June 2021 VA examination for TMDs, a VA doctor recounted a history of this same in-service back injury.  

The Board finds that while the service treatment records do not record back injuries or symptoms, the subsequent 12 years of lay and medical evidence shows a consistent story of an in-service back injury due to a 10-foot fall, which is also the story of a witness who was at the scene.  The Board finds that such evidence supports a finding that this in-service back injury occurred in either December 2008 or January 2009 while the Veteran was deployed in Kuwait.  Resolving reasonable doubt in the Veteran's favor, the Board finds that there was a back injury during service.  See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant).

The evidence is at least in relative equipoise on the question of whether the current back disability is etiologically related to service.  In October 2018, a private examiner opined that it is very highly likely that the back disability is due to the in-service fall from the ladder because forces strong enough to fracture vertebral endplates require trauma, such as this in-service fall.  The Board affords probative weight to this medical opinion because the private examiner acknowledged the in-service back injury, consistent with the facts found by the Board, and provided a pathological explanation for how a fall could have caused the current medical diagnoses.  

Resolving reasonable doubt in the Veteran's favor, the Board finds that the current back disability is etiologically related to service.  For these reasons, the Board finds that the criteria are met for service connection for the back disability; therefore, the appeal is granted.
, a private examiner opined that it is very highly likely that the back disability is due to the in-service fall from the ladder because forces strong enough to fracture vertebral endplates require trauma, such as this in-service fall.  The Board affords probative weight to this medical opinion because the private examiner acknowledged the in-service back injury, consistent with the facts found by the Board, and provided a pathological explanation for how a fall could have caused the current medical diagnoses.  

Resolving reasonable doubt in the Veteran's favor, the Board finds that the current back disability is etiologically related to service.  For these reasons, the Board finds that the criteria are met for service connection for the back disability; therefore, the appeal is granted. 

2. Service connection for right lower extremity radiculopathy is granted.

3. Service connection for left lower extremity radiculopathy is granted.

While the Veteran has not specifically claimed that the current right and left lower extremity radiculopathies were caused by the now service-connected back disability, the evidence shows that the lower extremity radiculopathies have always been reported and diagnosed together with the back diagnoses.  An October 2018 Disability Benefits Questionnaire (DBQ) shows a diagnosis of bilateral lower extremity radiculopathy along with back pain, DDD, lumbar retrolisthesis, and a vertebral fracture.  A March 2020 VA treatment record shows an MRI result of DDD with disc protrusion and possible contact of the right nerve root and mild neural foraminal narrowing (narrowing of the nerves leaving the spinal cord) for which lumbar epidural steroid injections (LESI) were ordered.  A December 2020 VA examination report shows a diagnosis of a lumbosacral strain and degenerative arthritis and on examination, there were bilateral radicular symptoms in the sciatic nerves.  November 2020 and May 2021 VA treatment records show chronic low back pain and lumbosacral radiculitis/radiculopathy that was treated with LESIs.  A June 2021 VA examination report shows a diagnosis of left lower extremity radiculopathy with an indicated etiology of the DDD and lumbar spine condition.  

The Board finds that the foregoing evidence is sufficient to show that the back disability, which was caused by a fall to the back during service, also caused the current right and left lower extremity radiculopathies.  The Veteran has always been treated for back symptoms together with radicular symptoms beginning around 2018, and medical assessments show symptoms of radiculopathy that have been connected with back symptoms and diagnoses.  

Resolving reasonable doubt in the Veteran's favor, the Board finds that the current right and left lower extremity radiculopathies were caused by the service-connected back disability, so are secondary to (38 C.F.R. 3.310(a)) the service-connected back disability.  For these reasons, the Board finds that the criteria are met for service connection for right and left lower extremity radiculopathy as secondary to (38 C.F.R. 3.310(a)) to the service-connected back disability; therefore, the appeals are granted. 

 

 

J. PARKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	I. Comis

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.