Citation Nr: 1030748 Decision Date: 08/17/10 Archive Date: 08/24/10 DOCKET NO. 05-17 633A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for radiculopathy of the right lower extremity, to include consideration as secondary to service-connected herniated nucleus pulposus L4-5 status post right partial L4-5 hemilaminectomy and discectomy (also referred to as herniated nucleus pulposus). 2. Entitlement to service connection for radiculopathy of the left lower extremity, to include consideration as secondary to service-connected herniated nucleus pulposus L4-5 status post right partial L4-5 hemilaminectomy and discectomy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shabnam Keyvan INTRODUCTION The Veteran served on active duty from June 1966 to June 1968, from March 1978 to March 1986, and from October 1986 to December 2003. The Veteran also served in the U.S. Navy Reserves and participated in active and inactive duty for training between November 1964 to June 1966 and throughout 1968 to 1978. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2004 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in pertinent part, denied service connection for herniated nucleus pulposus with right and left leg radiculopathy. During the current appeal, in a June 2005 rating decision, the RO separated these issues and granted service connection for herniated nucleus pulposus L4-5 status post right partial L4-5 hemilaminectomy and discectomy, rating it as noncompensably disabling, effective January 1, 2004. The RO continued the denial of service connection for radiculopathy of the right and left lower extremities. Additionally, the RO granted service connection for type II diabetes mellitus, rating it as 10 percent disabling, effective January 1, 2004, and also granted service connection for hypertension, rating it as noncompensably disabling, effective January 1, 2004. The Board finds that the grant of service connection for these disabilities constitutes a full award of the benefits sought on appeal with respect to these issues. See Grantham v. Brown, 114 F. 3d 156, 1158 (Fed. Cir. 1997). The record on appeal contains no indication that the appellant has appealed the downstream elements of effective date or initial rating for these disabilities; thus, these matters are not in appellate status. The Board also notes that the Veteran's appeal had originally included the issues of entitlement to service connection for bilateral hearing loss, tinnitus, elevated cholesterol and hepatitis A. However, the Veteran submitted a statement in September 2008 indicating that he wished to withdraw these four issues and only wished to continue his appeal with respect to the issues of entitlement to service connection for radiculopathy of the right and left lower extremities. Since then, the Veteran has not disputed that he intended to withdraw those particular claims. See 38 C.F.R. § 20.204 (2009). Accordingly, the issues of entitlement to service connection for bilateral hearing loss, tinnitus, elevated cholesterol and hepatitis A no longer remain in appellate status, and no further consideration is required. The Veteran is currently only appealing the August 2004 and June 2005 rating decisions denying him entitlement to service connection for radiculopathy of the right and left lower extremities A Travel Board hearing was held on July 15, 2010 at the St. Petersburg RO before Michelle Kane, a Veterans Law Judge (VLJ). The VLJ was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. §7107(c) (West 2002 & Supp. 2009) and is rendering the determination in this case. A transcript of the testimony is in the claims file. FINDINGS OF FACT 1. The Veteran's radiculopathy of the right lower extremity did manifest in service and has been shown to be secondary to his service-connected herniated nucleus pulposus. 2. The Veteran's radiculopathy of the left lower extremity has been shown to be secondary to his service-connected herniated nucleus pulposus. CONCLUSIONS OF LAW 1. Radiculopathy of the right lower extremity was incurred in active service, and is proximately due to a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2009). 2. Radiculopathy of the left lower extremity was incurred in active service, and is proximately due to a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claim folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assure that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Merits of the Claim Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the injury was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744- 47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran seeks service connection for radiculopathy of his right and left lower extremities, contending that these disabilities are due to residuals from surgery he underwent on his back while on active duty. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for radiculopathy of the right and left lower extremities. The Board notes that secondary service connection requires (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In this case, the Veteran's treatment records reflect that he currently has radiculopathy of the right and left lower extremities. In addition, the Veteran is service-connected for herniated nucleus pulposus; therefore Wallin elements one and two have been satisfied. The Veteran's service treatment records show that he was seen and treated for low back pain in January 1991. During the visit, the Veteran explained that a muscle spasm in his calf caused him to 'jump' out of bed and he now experiences pain in his lower back pain which radiates to his lower extremities. He was immediately admitted to the Naval Hospital and evaluated for his right leg radiculopathy. Follow-up service treatment records indicate he was routinely evaluated for his right leg pain, which he described as burning in nature. The Veteran also complained of decreased sensation in his right leg. A February 1991 operation report reflects that the Veteran was diagnosed with right leg radiculopathy and underwent a right L4-5 partial hemilaminectomy and diskectomy. Post-surgery the Veteran complained of some tingling and numbness in the right leg as well as some incisional pain in his back, but it was noted that these conditions showed improvement over the course of his hospitalization. Additional service treatment records dated in June 1995 and July 1995 indicate the Veteran was again evaluated for pain in his lower back. During these consultations, he also complained of pain in his left thigh and knee. The July 1995 Emergency Care and Treatment note reflects the Veteran reported a history of numbness and a burning/tingling sensation throughout his left anterior thigh. On his August 2003 Report of Medical History, conducted pursuant to his separation, the Veteran marked that he did experience numbness or tingling sensations, as well as recurrent back pain. With respect to whether the use of his arms, legs, hands, or feet was impaired, the Veteran marked yes. On his September 2003 Report of Examination, the clinical evaluation of his spine and lower extremities was shown to be normal. However, in the summary of defects and diagnoses section, the Veteran noted that he suffered from back pain status post laminectomy/discectomy. In September 2003, the Veteran filed a claim, in which among many issues, he sought service connected compensation for his left leg condition, his right leg radiculopathy, and the herniated nucleus pulposus in the right L4-5 disk region. In the August 2004 rating decision, the RO recharacterized these three claims into one issue and denied service connection for the herniated nucleus pulposus with right and left leg radiculopathy. As discussed previously in the introduction, these issues were subsequently separated in the June 2005 rating decision, and the Veteran was granted service connection for a herniated nucleus pulposus L4-5 status post right partial L4-5 hemilaminectomy and discectomy, and denied service connection for radiculopathy of the right and left lower extremities. With respect to whether the Veteran has a current disability, the Board turns to the Veteran's post-service VA treatment records. In the March 2008 VA examination report, the physician diagnosed the Veteran with residuals of herniated nucleus pulposus L4-5 status post hemilaminectomy and discectomy, but found no objective evidence of radiculopathy of the lower extremities. However, a July 2008 neurological evaluation showed the Veteran had decreased sensation in the right anterior tibial area with decreased patellar reflexes on that side. The Veteran was diagnosed with degenerative joint disease in the lower back with radiculopathy and arthritic changes. He was referred for an electromyography (EMG) for further evaluation. In September 2008, the Veteran presented at the VA treatment facility with complaints of chronic low back pain and pain which radiated down his lower extremities "along the lateral aspect of his ankles" since his surgery in 1991. The Veteran further reported a recurrent loss of feeling in his right shin area and a burning type pain at his ankles. An EMG was subsequently conducted, the results of which showed "left reduced recruitment" in the lower extremity muscles at the bilateral L4- 5 disk region, and "reduced recruitment on both sides" as well as left spontaneous activity...in the lower extremity muscles" at the bilateral L5-S1 disk region. Based on the EMG findings, the physician diagnosed the Veteran with left S1 radiculopathy, possible left L5 radiculopathy, and right L5 and S1 radiculopathy. Therefore, the Veteran is shown to have radiculopathy in his right and left lower extremities. With regard to whether there is a nexus between the Veteran's service-connected disability and his current disability, the Board again turns to the September 2008 VA treatment report. Based on the September 2008 EMG findings, the objective medical evidence relates the Veteran's radiculopathy of the right and left L5-S1 disk region to his service-connected herniated nucleus pulposus L4-L5 status post right partial L4-5 hemilaminectomy and discectomy. Therefore, the Board concludes that in this case, these records provide sufficient medical evidence of a nexus between the Veteran's radiculopathy of the right and left lower extremities and his service-connected herniated nucleus pulposus. To the extent that the Veteran's current radiculopathy of the right and left lower extremities is related to service, the Board finds that there is no evidence to show that such disability is related to anything other than his January 1991 in-service injury. The service treatment records are clear of complaints of radiating pain and decreased sensation in the lower extremities prior to the January 1991 injury, and the February 1991 operative report diagnosed the Veteran with right leg radiculopathy. Furthermore, the September 2008 EMG consult indicates a diagnosis of radiculopathy in the L5 disk level - the same region for which his service treatment records indicate a diagnosis of herniated nucleus pulposus at L4-5 and for which he underwent a right L4-5 partial hemilaminectomy and discectomy. Thus, in light of the positive September 2008 findings and conclusion, the Board finds that there is at least an approximate balance of positive and negative evidence in this case regarding the issue of whether the Veteran's current disability of right and left L5-S1 radiculopathy is related to his service-connected herniated nucleus pulposus. Accordingly, the Board finds that there is a reasonable doubt as to whether the Veteran's current radiculopathy of the right and left lower extremities is secondary to his service-connected herniated nucleus pulposus as opposed to it being related to some other factor or factors, and the Board will resolve that doubt in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). II. Duty to Notify Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In the decision below, the Board has granted the Veteran's claim for service connection for the right and left lower extremities as secondary to service-connected herniated nucleus pulposus, and therefore the benefit sought on appeal with respect to these claims have been granted in full. Accordingly, regardless of whether the notice requirements of the law have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. ORDER Subject to the provisions governing the award of monetary benefits, service connection for radiculopathy of the right lower extremity is granted. Subject to the provisions governing the award of monetary benefits, service connection for radiculopathy of the left lower extremity is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs