Citation Nr: 1114082 Decision Date: 04/08/11 Archive Date: 04/15/11 DOCKET NO. 06-07 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right leg condition as secondary to the service connected disability of the degenerative disc disease, lumbar spine. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD H. Yoo, Associate Counsel INTRODUCTION The Veteran had active service from July 1958 to June 1960 and from August 1960 to September 1978. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 2004 by the Department of Veterans Affairs (VA) Montgomery, Alabama Regional Office (RO). In January 2010, the Board remanded this matter for further development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran is service connected for (among other disabilities) degenerative disc disease, lumbar spine, at 40 percent disability rating; and sciatic neuralgia, left lower extremity (claimed as bilateral leg condition) associated with degenerative disc disease, lumbar spine, at 10 percent disability. Finally, in January 2010 the Board adjudicated the Veteran's claim for entitlement to a compensable disability rating for bilateral hearing loss by granting an increased rating from March 10, 2008, to September 15, 2009, and denying an increased for the period on and after September 15, 2009. The Board's decision is final. See 38 C.F.R. § 20.1100 (2010). The RO implemented the Board's decision in January 2010. The Veteran submitted a statement in April 2010 stating his hearing loss is worse and, therefore, wishes to appeal the decision to the Board and requested a hearing. The Veteran's April 2010 statement is construed as a new increased rating claim and is referred to the RO for adjudication. This issue will not be discussed in this decision as it is no longer before the Board. FINDING OF FACT The Veteran's right leg condition is not secondary to service connected disability of degenerative disc disease, lumbar spine, was not incurred in service, and is not related to service, or any incident therein. CONCLUSION OF LAW The criteria for service connection for right leg condition have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.303, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sough, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the duty to notify was satisfied by notice letter sent to the Veteran in November 2003. This letter informed him of what evidence was needed to establish the benefits sought, of what VA would do or had done, and of what evidence the Veteran should provide. Although the Veteran was not provided notice of the effective date and disability rating regulations, because service connection has been denied, any question as to the appropriate disability rating or effective date is moot, and there can be no failure-to-notify prejudice to the Veteran. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In January 2010, the Board remanded this matter for additional private treatment records. In January 2010, the Board requested the Veteran complete and return VA Form 21-4142, Authorization and Consent to Release Information. However, the record does not show that the Veteran or his representative to have submitted these forms or any outstanding records. Therefore, the Board concludes that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and may proceed without prejudice to the Veteran. VA has also done everything reasonably possible to assist the veteran with respect to his claim for benefits, such as obtaining VA and private medical records, and providing a VA examination. Consequently, the duty to notify and assist has been satisfied, as to those claims now being finally decided on appeal. Service Connection Service connection may be granted for a chronic disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. To establish service connection for a disability, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury. Further, a present disability must exist and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the Veteran's military service. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there are required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic". Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b). Service connection also may be granted for disability shown to be proximately due to, or the result of, a service- connected disorder. See 38 C.F.R. § 3.310(a). This regulation has been interpreted by the Court to allow service connection for a disorder which is caused by a service- connected disorder, or for the degree of additional disability resulting from aggravation of a nonservice- connected disorder by a service-connected disorder. See Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006, to implement Allen. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). Under the revised section 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service- connected. The Veteran alleges that his right leg condition is secondary to this service connected degenerative disc disease of the lumbar spine. It is noted that service connection has previously been established for degenerative disc disease of the low back disability, and for sciatic neuralgia of the left lower extremity. According to the Veteran's in-service treatment records, the Veteran injured his back in June 1965. He was diagnosed with a low back strain. There are, however, no complaints or treatment for a right leg condition. In addition, the Veteran's separation examination was also absent of any abnormal right leg condition. See in-service treatment records. Dr. R. E. Lindsey, the Veteran's private chiropractor, submitted a July 2002 letter stating that he treated the Veteran in June 2002. The Veteran complained that the pain in lower back had extended down his right leg. A physical examination revealed "straight leg raises [that] caused pain bilaterally with the right being more severe... Range of motion studies show[ed] restriction in flexion/extension and both right and left lateral flexions. These findings [were] consistent with degenerative disc disease of the lumbar spine." See Dr. R. E. Lindsey letter, dated July 2002. A June 2003 letter from Dr. Lindsey stated that the Veteran continued to complain of intermittent right leg pain. See Dr. R. E. Lindsey letter, dated June 2003. However, an April 2004 VA examination report indicates that while the Veteran reported symptoms of neuralgia in the left leg, the right leg was not symptomatic. A physical examination noted good muscle tone in both legs, and there was no evidence of muscle wasting or atrophy. The Veteran's gait was normal. See VA examination, dated April 2004. In May 2005, the Veteran was treated at a VA medical facility for complaints of pain in his legs and back. A physical examination found no clubbing cyanosis or edema of the extremities. See VA treatment record, dated May 2005. In November 2006, the Veteran again sought treatment for his bilateral leg pain. See VA treatment record, dated November 2006. Other than the May 2005 VA treatment record, the VA treatment records from July 1998 to October 2009 reported no other complaints or treatment for a right leg condition or any evidence a right leg condition was related to his service connected lumbar spine disability. See VA treatment records, dated July 1998 to October 2009. In August 2005, Dr. P. D. Weeks, another private chiropractor, stated that the Veteran was examined in July 8, 2005 and noted that "he is exhibiting symptoms associated with a Posterior Lateral Disc Bulge of L4-L5, L5-S1 in his right lower extremity... These problems greatly affect his activities of daily living." See Dr. P. D. Weeks letter, dated August 2005. In March 2010, the Veteran underwent another VA examination. The Veteran reported "there [is] nothing wrong with his joint, right lower extremity but he is experiencing the same symptoms as his left sciatic, left lower extremity." He stated he was not able to stand for 15-30 minutes and unable to walk for more than a few yards. There was no evidence of right knee deformity, giving way, instability, pain, stiffness, weakness, incoordination, effusion, or inflammation. Upon physical examination and a review of the claims file, the examiner opined it was "not caused by or a result of degenerative disc disease of the lumbar spine." The examiner reported "degenerative disc disease of the lumbar spine and a right leg condition are totally different entities. Additionally, the leg is divided into several components (muscle, joints, thigh, nerve, etc.)" See VA examination, dated March 2010. Finally, the Veteran submitted a September 2010 private treatment record from Dr. D. W. Pahl, a private physician. According to this record, the Veteran reported weakness in his left leg was greater than his right with "electricity shooting down his left, that extends into the anterior though and occasionally down into the feet." A physical examination revealed a nonantalgic gait and he was able to perform heel-to-toe reciprocating walk appropriately. There was negative straight leg raise bilaterally. The assessment noted chronic severe low back pain and right leg pain. However, there was no evidence the Veteran's right leg pain was related to the back disability. See Dr. D. W. Pahl private treatment record, dated September 2010. After consideration of the entire record and the relevant law, the Board finds that the Veteran's right leg condition is not secondary to his service connected degenerative disc disease of the lumbar spine, and service connection is not established. While it is appears the Veteran currently has right leg pain, the medical evidence of record as a whole supports the proposition that there is no etiological relationship between the origin and/or severity of any right leg condition and service. Specifically, the March 2010 VA examination provides a negative nexus opinion and rationale as to the question of etiology. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his of her knowledge and skill in analyzing the data, and his or her medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). While Dr. Lindsey and Dr. Weeks do provide a positive nexus opinion, the Board finds, however, that the March 2010 VA examination report is far more probative than the private medical opinion. The VA examiner's opinion is based on review of the claims folder, including the Veteran's service treatment records, and his opinion discusses the Veteran's pertinent in-service and post-service medical history. He offers an explanation of the rationale for his opinion. It does not appear Dr. Lindsey and Dr. Weeks had access to the Veteran's claims file. Given the VA examiner's access to the claims folder opinion, the Board finds this opinion to be highly probative to determining whether service connection was warranted. Furthermore, the Board acknowledges the Veteran's contentions. However, where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is possible or plausible is required. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The claimant does not meet this burden by merely presenting his opinion because he is not a medical health professional and his opinion does not constitute competent medical authority. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Here, while the Veteran is competent to describe his symptoms of a right leg condition, he is not competent to comment on the etiology of the condition. In addition, while there is evidence that the Veteran's sciatic neuralgia of the left leg was related to the service connected disability of degenerative disc disease of the lumbar spine, there is no indication from the evidence that a right leg condition is also related to the service connected disability or to service. Although the Board is sympathetic to the Veteran's claim based on the normal findings at separation and the probative negative nexus opinion the evidence for the Veteran's claim for direct service connection and secondary to his service connected degenerative disc disease of the lumbar spine is outweighed by the countervailing evidence. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for a right leg condition as secondary to the service connected disability of the degenerative disc disease, lumbar spine, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs