Citation Nr: 1014845 Decision Date: 04/19/10 Archive Date: 04/30/10 DOCKET NO. 04-43 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a sciatic nerve condition in the bilateral legs, to include as secondary to low back strain. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD S. Richmond, Counsel INTRODUCTION The Veteran had active military service from December 1968 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for a sciatic nerve condition, secondary to a low back condition. The Veteran requested a local hearing on his VA-Form 9, but later withdrew the request in March 2005. The Board denied this claim in June 2007. Pursuant to a Joint Motion for Partial Remand, that decision was dismissed by the U.S. Court of Appeals for Veterans Claims in June 2008. In October 2008, the Board remanded the case back to the RO for provision of another VA examination, which was provided in January 2009. The directives of the Board's remand were substantially complied with. After the case was recertified to the Board, the Veteran submitted additional evidence in October 2009. A remand, pursuant to 38 C.F.R. § 20.1304 is not necessary, however, as the evidence is duplicative of information already of record. The issue of entitlement to nonservice-connected pension has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The record shows that EMG studies in the lower extremities have been consistently normal and that there is no probative medical evidence of any diagnosed neurological impairment in the lower extremities. Furthermore, a VA examiner in January 2009 found that the Veteran's subjective complaints of radiating pain and numbness into the lower extremities did not have its onset in service, nor were the complaints etiologically related to any disease of service origin, which would include his service-connected lumbar strain disability. CONCLUSION OF LAW A sciatic nerve disability was not incurred in or aggravated by service, nor is it related to his service-connected lumbar strain disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310(a) (2009); 38 C.F.R. § 3.310(a)(effective prior to October 10, 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice with respect to the claim for a sciatic nerve condition by letter dated in April 2004. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, no new disability rating or effective date for award of benefits will be assigned as the claim for service connection is being denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and obtained medical opinions as to the etiology of the claimed sciatic nerve disability. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Analysis The Veteran seeks service connection for sciatica on both legs, secondary to his service-connected back disability. The record shows the Veteran is service-connected for low back strain. He stated that he has pain and tingling from the low back down to his legs and feet caused by a sciatic nerve condition. An acquaintance also submitted a statement in 1991, indicating that the Veteran's complaints of leg pain had been observed since service. The Veteran thus asserts entitlement to disability compensation for a sciatic nerve condition. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A § 1110. "Service connection" basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. A veteran may also establish service connection if all of the evidence, including that pertaining to service, shows that a disease first diagnosed after service was incurred in service. 38 C.F.R. § 3.303. In addition, service connection can be granted on a secondary basis. Except as provided in 38 C.F.R. § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). 38 C.F.R. § 3.310, the regulation concerning secondary service connection, was amended effective October 10, 2006. See 71 FR 52744-47, (Sept. 7, 2006). The intent was to conform to the regulation to Allen v. Brown, a U.S. Court of Appeals for Veterans Claims decision that clarified the circumstances under which a Veteran may be compensated for an increase in the severity of an otherwise nonservice-connected condition caused by aggravation from a service-connected condition. Any increase in severity of a nonservice- connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. See 38 C.F.R. § 3.310 (2009). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation, specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation. Because the new law appears more restrictive than the old, and because the Veteran's appeal was already pending when the new provisions were promulgated, the Board will consider this appeal under the law in effect prior to October 10, 2006. See, e.g., Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (new regulations cannot be applied to pending claims if they have impermissibly retroactive effects). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record shows multiple complaints of pain and numbness in the legs. A January 1992 VA examination report shows complaints of numbness and soreness in the right leg. A February 1992 VA examination showed that a straight leg raising test on right and left caused pain in the lower back at 45 degrees. An August 1998 VA examination report shows complaints of pain, stiffness, and numbness that radiates to the right leg. On physical examination, the Veteran flinched with palpation to right lower back and had bilateral lower back pain with straight leg raise. In April 2003, a VA examination report notes complaints of a constant tingling sensation and prickly pain of the anterior thighs, which increased in intensity with increased activity. The Veteran also complained of occasional pain which radiated from the back to both thigh areas. The Veteran's statements regarding his symptoms are accepted as credible evidence because he is competent to state that which he experiences. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See Washington v. Nicholson, 19 Vet App 362 (2005), citing Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness' personal knowledge). The medical evidence, however, does not show a sciatic nerve condition as the cause for the Veteran's complaints. One year after service, in December 1971, a VA medical record notes that there was no tenderness in the sciatic notch. Private physical examination in October 1996 showed decreased pinprick sensation at all extremities in stocking patterns. Deep tendon reflexes were normoactive and symmetric. The electromyograph (EMG) report showed a normal study with no electrical evidence of peripheral neuropathy. An August 1998 VA examination report shows that deep tendon reflexes were 2+ and sensation was intact. An April 1999 VA physical examination report shows two-point discrimination to great toes; great toe strength was 5/5 bilaterally. There was no sensory deficit to brush or pinprick throughout lower extremity, from thighs to shins, front and back, dorsal, and plantar aspects of feet. An April 1999 VA peripheral nerve examination report noted that an EMG of his right peroneal nerve was normal to motor and sensory examination. The examiner noted that the Veteran's complaints of paresthesias, dysesthesias, and other sensory abnormalities were unclear but that he had none at that time. In July 1999, a VA radiology report notes compression of the thecal sac eccentric to the right, which might cause symptomatic compression or irritation of the exiting right L5 root. An October 2000 VA medical record notes that neurological examination of the back was intact. Straight leg raising test was negative. An August 2001 VA EMG report shows a study of the back and right lower extremity did not reveal abnormal electrical signs or evidence of radiculopathy or peripheral neuropathy. An April 2003 VA examination report notes that neurological examination showed gait, posture, and balance were normal. Deep tendon reflexes were 2+/4 and symmetrical. The examiner noted that there was no evidence of sensory or motor impairment on the examination. In May 2004, a VA examination report shows the Veteran's reported history was consistent with L5-S1 radiculopathy. On physical examination, however, there was no evidence of paralysis, neuritis, neuralgia, muscle wasting, atrophy, or involuntary movement. Neurologically, the Veteran remained intact. Gait, posture, and balance were normal. Deep tendon reflexes were 2+/4 and symmetrical. A May 2004 EMG impression showed a normal study. There was no peripheral neuropathy in the right leg and no right lumbosacral nerve root lesion detectable. The diagnosis was no evidence of right L5-S1 radiculopathy. A March 2005 private medical "Scheduled Procedure Questionnaire / Order for a lumbar MRI includes a diagnosis of lower back pain with radiculopathy, without explanation or amplification. There is no lumbar MRI report, however, and no evidence that the MRI was ever done. An October 2005 VA neurological examination report shows the Veteran was unable to give full effort while testing in the lower extremities due to the low back pain, but motor strength was grade 4+/5 in lower extremities. Sensory examination to include sacral segments was normal. There was inconsistent scattered hypesthesia of the lower extremities and no myotomal deficits. Motor examination showed normal power bulk tone and symmetry of the muscle groups of the lower extremities. Reflexes were intact and equal. Straight leg raise was negative to 90 degrees bilaterally. A January 2009 VA examination report shows the Veteran complained of lower back pain radiating to both abdominal flanks since he fell backwards hitting the deck of a boat in 1969. He also complained of numbness along the anterior aspect of the right lower extremity down to the foot; he could not specify with certainty what part of the foot; and mild numbness along the posterolateral aspect of the left lower extremity down to the left foot with specification of numbness of the left foot expressed similarly as the right foot. Radiation to both lower extremities began approximately 12 years ago. He described the duration as constant and the intensity as 5 out of 10, sometimes 7 or 8 out of 10. He reported no bowel or bladder complaints. He sometimes could not walk more than one mile. He did not have a history of falls. X-ray examination of the lumbar spine showed that normal spondylitic changes were present. Small osteophytes were present from L3 to L5-S1 level, and the L3-L4, L4-L5, and L5- S1 disc spaces were reduced in height. The bilateral sacroiliac joints were within normal limits. The impression was normal spondylitic changes present. The EMG/ Nerve Conduction Velocity (NVC) impression was no peripheral neuropathy in the right leg and no EMG evidence of a right lumbosacral nerve root lesion detectable. The diagnosis was degenerative joint disease of the lumbar spine with no radiculopathy found clinically or by EMG or NVC testing. In asserting his opinion, the examiner commented that the Veteran's service treatment records revealed low back pain with no radiation and normal neurologic examination. The claims file revealed in 1985 he still had low back pain with no radiation and normal neurologic examination. The Veteran stated today that the radiation to both lower extremities began approximately 12 years ago. The pattern of radiation to both lower legs was not that of radiculopathy. The feet symptom description was vague and inconsistent. X-rays of the lumbosacral spine showed minor degenerative changes expected for his age. Therefore, the Veteran's radiation to both lower extremities did not have its onset in service, nor was it etiologically related to any other disease or injury while the Veteran was in active duty. While the Veteran has complaints of pain and numbness into the lower extremities, neurological evaluation has consistently shown that there is no sciatic nerve condition as the cause for the Veteran's complaints. EMG reports dated from October 1996 to January 2009 were normal with no evidence of radiculopathy or peripheral neuropathy. A July 1999 VA radiology report notes compression of the thecal sac eccentric to the right, which might cause symptomatic compression or irritation of the exiting right L5 root, but this is not a definitive opinion. A May 2004 VA examination report shows that, while the Veteran's reported history was consistent with L5-S1 radiculopathy, on physical examination there was no evidence of paralysis, neuritis, neuralgia, muscle wasting, atrophy, or involuntary movement. Neurologically, the Veteran remained intact with no clinical evidence of peripheral neuropathy or right L5-S1 radiculopathy. The March 2005 private medical "Scheduled Procedure Questionnaire / Order for a lumbar MRI includes a diagnosis of lower back pain with radiculopathy, but this is without explanation or amplification or an actual lumbar MRI report showing evidence that the MRI was ever done. Moreover, this finding is inconsistent with the multiple EMG studies of record, which were normal. The October 2005 VA examiner noted that the service treatment records showed back pain and decreased pinprick on the left calf and foot in September 1970 and found that it was as likely as not that the sciatic nerve condition had its onset during service. The service treatment records confirm the finding in September 1970 of decreased pinprick on the left lower extremity. The October 2005 VA medical opinion is not helpful to the claim, however, because the examiner did not diagnose a current sciatic disability. Rather, he found the neurological examination results to be unremarkable and specifically found the sensory examination to be normal. Moreover, the January 2009 VA examiner, when specifically asked to provide a diagnosis for the lower extremities, found that based on a review of the claims file, the Veteran's reports, and clinical evaluation, the pattern of radiation to both lower legs was not that of radiculopathy. The examiner commented that the Veteran's feet symptom description was vague and inconsistent. The Veteran also reported on this examination that the symptoms in his lower extremities only began 12 years prior, which is inconsistent with his other reports. The examiner further found that x-rays of the lumbosacral spine showed minor degenerative changes that were expected for his age. Therefore, the examiner determined that the Veteran's radiation to both lower extremities did not have its onset in service, nor was it etiologically related to any other disease or injury while the Veteran was in active duty. The record shows that EMG studies in the lower extremities have been consistently normal and that there is no probative medical evidence of any diagnosed neurological impairment in the lower extremities. Furthermore, a VA examiner in January 2009 found that the Veteran's subjective complaints of radiating pain and numbness into the lower extremities did not have its onset in service, nor were the complaints etiologically related to any disease of service origin, which would include his service-connected lumbar strain disability. The Veteran genuinely believes that his complaints of numbness and pain in his lower extremities are related to his service-connected back disability. His factual recitation as to symptoms is accepted as true. However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the etiology any neurological impairment of the lower extremities and his views are of no probative value. And, even if his opinion was entitled to be accorded some probative value, it is far outweighed by the opinion provided by the January 2009 medical professional who found that there was no relationship between the Veteran's complaints and his service or any disability of service origin, as well as the multiple EMG reports of record showing no neurological impairment in the lower extremities. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The preponderance of the evidence is against the service connection claim for a sciatic nerve condition in the bilateral legs, to include as secondary to low back strain; there is no doubt to be resolved; and service connection is not warranted. Gilbert v. Derwinski, 1 Vet. App. at 57-58. ORDER Entitlement to service connection for a sciatic nerve condition, bilateral legs, to include as secondary to low back strain is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs