Citation Nr: 1300796 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 09-19 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a low back disability, with associated L-5 and L-6 radiculopathy. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from February 1973 to February 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (ROIC) in Philadelphia, Pennsylvania, which denied the Veteran's claim for service connection for L-5 and l-6 radiculopathy. In December 2012, the Veteran failed to appear for a Board hearing scheduled for that month. He has not requested that the hearing be rescheduled. Therefore, his request is considered withdrawn. See C.F.R. §20.702(d) (2012). In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. The medical evidence shows that the Veteran's radiculopathy is a manifestation of his degenerative joint disease and degenerative disc disease of the lumbar spine. Thus, although the Veteran has only claimed service connection for L-5 and L-6 radiculopathy, the Board finds that the issue encompasses service connection for a low back disability. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Under the VCAA, VA is obliged to provide an examination in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Veteran contends that his currently demonstrated L-5 and L-6 radiculopathy is related to his active military service. Service treatment records show that in February 1975, the Veteran complained of lumbar back pain for three days. Private treatment records from L.Z., MD indicate that the Veteran was seen in November 2006 for complaints of significant bilateral leg pain and difficulty ambulating since September 2006. He was subsequently hospitalized and treated for seven days, and was diagnosed with low potassium levels and leg weakness, which improved with steroids. The Veteran also complained of significant difficulty walking and numbness in the thigh and calf region bilaterally, associated with cramps and cold feet. An MRI of the lumbar spine conducted at that time revealed mild to moderate spinal stenosis at L3/4 with mild spinal stenosis at L4/5. The physician also noted that the Veteran was to have an EMG/nerve conduction study to rule out any active LS radiculopathy, peripheral neuropathy or entrapment neuropathy. Results from neurological testing conducted in January 2007 were compatible with bilateral S1/2 active radiculopathy and possible chronic multiple root irritation on the right side. July Treatment records from T.D., MD show that in July 2007, the Veteran complained of back pain radiating down his right leg to his right calf, which Dr. T.D. noted was caused by his spinal stenosis of the LS spine. Private treatment records from the Cooper Health Care System also show that the Veteran was noted to have degenerative changes in the lumbar spine, with associated S1 radiculopathy. Outpatient treatment records from the VA Medical Center in Philadelphia, Pennsylvania show that in 2006, the Veteran was noted to have significant bilateral lower extremity weakness and numbness with no clear diagnosis. In 2007, he was diagnosed during VA outpatient treatment with lower extremity weakness/pain, due to multilevel degenerative joint disease (DJD)/degenerative disc disease (DDD) of the spine, for which he was being followed privately. He continued to be treated in 2007 for DDD of the lumbar spine with low back pain radiating to his lower extremities. October 2007 treatment notes from the Veteran's private physician at the Neurological Center indicate that the Veteran was being treated for L-5 radiculopathy, and that L-6 was improving with physical therapy, but he continued to have symptoms. Social Security Administration records show that the Veteran is receiving disability benefits for a back condition with radiculopathy. Here, the Veteran is clearly competent to attest to his symptoms regarding low back pain and lower extremity pain, numbness and weakness. Such symptoms are "observable" symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Therefore, the Board finds that the Veteran's assertions regarding his in-service and post-service symptoms are of probative value. As noted above, service treatment records show that the Veteran was treated for low back pain in service. The post-service medical evidence of record shows that the Veteran has been diagnosed with DJD and DDD of the lumbar spine, with associated radiculopathy of the lower extremities, a number of years after service. Therefore, an examination and opinion is needed to determine whether the Veteran's current low back disability or bilateral lower extremity radiculopathy was incurred or aggravated during his active military duty. 38 U.S.C.A. § 5103A(d) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the etiology of any current back disability and radiculopathy of the lower extremities. The Veteran's claims folder must be made available to and reviewed by the examiner. Any indicated studies should be conducted. 2. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more), that any current low back disability and radiculopathy of the lower extremities is etiologically related, in whole or in part, to the Veteran's active service. The examiner should provide a rationale for all opinions expressed. The examiner is advised that the Veteran is competent to report symptoms and injuries, and diagnoses provided to him by physicians. If the Veteran's reported history is discounted, the examiner should provide a reason for doing so. A Veteran's statements may not be discounted solely on the basis of the lack of confirmation in the medical records. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2012). 3. If any benefit sought on appeal is not granted, the AOJ should issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).