190731-24889

• Court: Board of Veterans' Appeals
• Decided: September 30, 2020
• Docket: 190731-24889
• Status: Unpublished

Opinion

Citation Nr: AXXXXXXXX Decision Date: 09/30/20 Archive Date: 09/30/20

DOCKET NO. 190731-24889 DATE: September 30, 2020

ORDER

Service connection for a low back disability is granted.

Service connection for bilateral lower extremity radiculopathy, including as secondary to a low back disability, is granted.

FINDINGS OF FACT

1. The Veteran has a current lumbosacral strain and an in-service back injury as per favorable finding a July 2019 Rating Decision; the Veteran’s in-service injury was determined to be in the line of duty, as per an August 2003 Statement of Medical Examination and duty status report, and the Veteran has provided competent and credible lay evidence that his back pain has persisted since that injury throughout the record, including the July 2010, November 2013, and July 2019 VA examinations, that he has experienced recurrent back pain since that in-service injury. [The negative October 2010 and July 2019 VA causal linkage opinions do not meet the minimum criteria to be used as evidence because they did not appear to consider the Veteran’s lay evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning).]

2. The Veteran has a current diagnosis of bilateral lower extremity radiculopathy, see July 2019 VA back examination; his lumbosacral strain is service connected [in this decision]; and the VA examiner opined that his bilateral lower extremity radiculopathy is related to his lumbosacral strain, see id.

CONCLUSIONS OF LAW

1. The criteria are met for service connection for a lumbosacral strain. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

2. The criteria are met for service connection for bilateral lower extremity radiculopathy (as secondary to the lumbosacral strain). 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 1995 to May 1995 and from February 2003 to July 2004, with additional periods of Reserve service. In July 2020, a hearing on the Veteran’s claim for service connection for a lumbosacral strain was held before the undersigned Veterans Law Judge (VLJ); a copy of the transcript is associated with the record.

The rating decision on appeal was issued in July 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the July 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Evidence was added to the claims file during a period of time when new evidence was not allowed. Because the Board is deciding the claims for service connection for a lumbosacral strain and associated bilateral lower extremity radiculopathy, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim 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.

Although a prior unappealed November 2011 denial of service connection for a lumbosacral strain would normally require reopening before considering the downstream service connection claim on its merits, the record shows that, after that denial, VA obtained an August 2003 line of duty determination that existed at the time but was not obtained (because it was reportedly misfiled by no fault of the Veteran). Consequently, 38 C.F.R. § 3.156(c) provides that VA must reconsider that original claim. The issues on appeal have been amended accordingly. The Veteran submitted an application for service connection for that lumbosacral strain in July 2019. [The Veteran was also denied an attempt to later reopen his claim, see October 2014 rating decision, but the August 2003 line of duty determination was also not in the Veteran’s claims file at that time].

Evidence of record shows bilateral lower extremity radiculopathy associated with the Veteran’s lumbosacral stain. Because neurological symptoms are part and parcel of a Veteran’s claim for an increased rating of a spinal disability, the issue of a separate compensable rating for bilateral lower extremity radiculopathy has been added to the Veteran’s claim. Cf. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1; see also A.B. v. Brown, 6 Vet. App. 35, 38-39 (1993).

For the reason explained above, the appeals are granted. The effective date for service connection for the lumbosacral strain should be June 30, 2019, the date the original application was received by VA.

VICTORIA MOSHIASHWILI

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board David Arritt, 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.