Citation Nr: 1301910 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 10-22 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a neurological disorder of the lower extremities as secondary to a service-connected back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) with the United States Army National Guard from April 4, 1984 through August 13, 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which, in pertinent part, denied the Veteran's claim for service connection for neuropathy of the lower extremities, secondary to his service-connected back disability. In May 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge, seated at the RO (Travel Board hearing). A transcript has been procured and associated with the claims file. In December 2011, after the certification of the Veteran's appeal to the Board, the Veteran submitted additional evidence. In May 2012, the Veteran submitted a written statement indicating that he waived his right to have this evidence considered by the RO. 38 C.F.R. §§ 20.800, 20.1304(c) (2012). FINDING OF FACT The Veteran's radiculopathy of the lower extremities was caused by his service-connected back disability. CONCLUSION OF LAW The criteria for entitlement to service connection for radiculopathy of the lower extremities as secondary to the service-connected back disability have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this decision, the Board grants service connection for radiculopathy of the lower extremities. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. The Veteran contends that he has a neurological disorder, manifested by radicular symptoms such as numbness and pain, affecting his lower extremities, as secondary to his service-connected back disability. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A Veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Further, effective October 10, 2006, 38 C.F.R. § 3.310 was amended to codify the Court's holding in Allen, which relates to secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service-connected disability. See 38 C.F.R. § 3.310(b). The amendment essentially requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). VA granted service connection for a back disability in November 1985. Service treatment records indicate that the Veteran injured his back in May 1984 after falling 10 feet during a training exercise. Reviewing the lay evidence of record, in a July 1990 VA treatment record, the Veteran first reported experiencing neurological symptomatology, specifically numbness on the lateral side of the right leg and radiation of pain into the right leg. Subsequently, the Veteran consistently has reported experiencing radicular symptoms, mostly involving numbness and pain symptomatology in the lower extremities. For example, in an April 2002 VA medical examination report, the Veteran reported experiencing numbness and tingling in the right leg. In a June 2008 VA medical examination report, the Veteran reported experiencing right leg sciatica symptoms including pain and numbness in his toes. In a July 2009 VA treatment record, the Veteran reported experiencing radiating pain into his right leg and foot. In a September 2011 VA treatment record, the Veteran reported experiencing pain radiating into his posterior thighs, right posterior calf, and anterior shins. The Board notes that the Veteran is credible, as a layperson, to report disorder symptomatology observable to him as a layperson. See Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, considering the Veteran's consistent reports regarding the nature of his neurological symptomatology since July 1990, the Board finds that the Veteran's reports of radiculopathy symptoms to be credible. See Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Regarding the treatment evidence, the Board finds that the evidence is in relative equipoise as to whether the Veteran currently has a diagnosed neurological disorder secondary to his service-connected back disability. In the July 1990 VA treatment record which included the Veteran's initial reports of neurological symptoms, a VA examiner after a physical examination diagnosed the Veteran as having chronic back strain manifested by pain and stiffness, and neural radiculitis manifested by radiation into the right leg and tenderness along the sciatic nerve. In a June 2008 VA treatment record, a VA examiner, having noted the Veteran's report of right foot numbness, diagnosed suspect paresthesias and indicated that tests should be conducted to rule-out nerve root compression of the right lumbar spine. In an August 2008 VA treatment record, a VA examiner, in attempting to diagnose the cause of the Veteran's reports of right foot paresthesias, noted that a recent VA MRI report was consistent with a combination of disc herniation and apophyseal osteoarthritis with impingement of the L5 root with foraminal stenosis. During the pendency of the appeal, the Veteran was afforded a March 2010 VA medical examination to determine the nature and etiology of his claimed neuropathy disorder. In the March 2010 VA medical examination report, a VA examiner reported reviewing the claims file, interviewing the Veteran, and performing a physical examination prior to diagnosing the Veteran as having chronic low back pain. In her summation, the VA examiner noted that the Veteran reported having symptoms of radiating low back pain, sometimes to the right buttock and down the posterior leg, consistent with sciatica. The VA examiner also noted that a June VA 2008 MRI report appeared to show evidence of neuroforaminal narrowing at certain nerve root levels, including the right L5 nerve root. The VA examiner requested that an EMG nerve conduction study be performed to aid in diagnosing the Veteran. In an April 2010 VA EMG report, a VA examiner noted that the EMG study was normal, indicating that there was no electrodiagnostic evidence of either lumbosacral radiculopathy or peripheral neuropathy affecting either leg. In an April 2010 addendum to the March 2010 VA medical examination report, the March 2010 VA examiner, having reviewed the April 2010 VA EMG report, stated that the Veteran did not appear to have any neuropathy and, therefore, did not seem to have any neuropathy related to his service-connected chronic back strain and pain. Subsequently, in a September 2011 VA pain consultation report, a VA examiner indicated that the Veteran had been referred due to worsening lumbar radiculopathy symptoms. The Veteran reported experiencing pain radiating to both posterior thighs, right posterior calf, and anterior shins. Upon examination, the VA examiner noted that straight leg raise testing of the right lower extremity was limited to 30 degrees with reproducible radicular symptoms, and straight leg raise testing of the left lower extremity was limited to 40 degrees with radicular symptoms. Upon reviewing the June 2008 VA MRI report, the VA examiner noted that the MRI was consistent with the Veteran's radicular symptoms. The diagnosis was chronic lower back pain with radicular symptoms. The Board notes that the medical evidence is in relative equipoise as to whether the Veteran's has a diagnosed neurological disorder related to his service-connected back disability. As noted above, a July 1990 VA examiner diagnosed the Veteran as having both a back disorder and neural radiculitis. Moreover, an August 2008 VA examiner, when attempting to diagnose the cause of the Veteran's claimed neuropathy symptomatology, noted that the Veteran's MRI indicated nerve impingement at L5. In the subsequent March 2010 VA medical examination report, a VA examiner noted the Veteran's credible reports of sciatica symptomatology; however, in an April 2010 addendum, the March 2010 VA examiner indicated that the Veteran did not have a diagnosed neuropathy disorder because an April 2011 EMG report was normal. Most recently, however, a September 2011 pain consultant noted that the Veteran showed symptoms of a radicular disorder upon physical examination. Considering the Veteran's credible reported symptoms, the June 2006 MRI showing nerve root impingement, and the results on physical examination, the September 2011 VA examiner diagnosed chronic lower back pain with radicular symptoms. Therefore, the Board finds that the Veteran has presented credible lay evidence of radiculopathy and the medical evidence is in rough equipoise as to whether such symptoms result from a diagnosed neurological disorder caused by the Veteran's service-connected back disability. Accordingly, applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. ORDER Service connection for radiculopathy of the lower extremities as secondary to a service-connected back disability is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs