Citation Nr: 1307640 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 12-24 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for neurological impairment of the bilateral lower extremities, including as secondary to the service-connected degenerative disc disease, thoracolumbar spine. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his daughters ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from October 1948 to August 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2013, the Veteran testified at a Board videoconference hearing at the RO. A transcript of that hearing has been associated with the claims file. The Board notes that, in addition to the paper claims files, there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issues on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The Veteran has L5-S1 radiculopathy of his bilateral lower extremities that is causally connected to his service-connected degenerative disc disease of the thoracolumbar spine. CONCLUSION OF LAW The Veteran's bilateral lower extremity radiculopathy is proximately due to his service connected degenerative disc disease of the thoracolumbar spine. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Because the Veteran's service connection claim is being granted, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). II. Secondary Service Connection While the Veteran has asserted his claim under the theories of direct service connection as well as secondary service connection, since the Board is granting the Veteran's claim under the theory of secondary service connection, the laws and regulations concerning direct service connection will not be discussed and the Board will, instead, focus its analysis of the Veteran's claim under the theory of secondary service connection. Under section 38 C.F.R. § 3.310(a), service connection may be established on a secondary basis for a disability that is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a) (2012). 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 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. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that 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). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). III. Analysis The Board has reviewed all of the evidence in the Veteran's claims files, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran asserts he has a neurological impairment of his bilateral lower extremities that is caused by his already service connected degenerative disc disease of the thoracolumbar spine (hereinafter referred to as "back disability"). For many years, the Veteran has reported symptoms related to his lower extremities, and he has consistently reported them as symptoms related to his back disability. As early as the February 1998 VA spine examination, the Veteran reported that he had started experiencing a burning sensation in both legs with numbness. In June 2000, he reported to a VA physician that he experiences, with increased standing, back pain and a sensation of numbness in both lower extremities. A February 2001 VA clinical note shows that the Veteran was experiencing burning pain that radiates across the buttock and into the posterior thigh. An August 2001 notes show that the Veteran reported increased cramping in his bilateral lower extremities while having intense back pain. February 2002 notes show that he described recurring burning, tingling, and pain radiating into his bilateral lower extremities from his back. More recently, in May 2010, the Veteran reported a continuing recurring tingling sensation in both lower extremities. At the March 2011 VA spine examination, he reported an achy radiating pain into his bilateral lower extremities. The Veteran's recent private neurologist's records also show similar symptoms, and these records provide a definitive diagnosis related to the symptoms. In December 2011, the private physician noted the Veteran as having pain radiating from his back to his right and left legs, with associated numbness. An EMG report at that time clearly notes "L5 and S1 radiculopathy." The impression from an MRI at the same time was "severe multilevel degenerative disc disease which results in neural foraminal narrowing, nerve root impingement, and severe central canal narrowing most predominant in the lower lumbar spine." In a February 2012 note, the doctor again reports that the Veteran's back symptoms include pain, stiffness, decreased range of motion, and radiating pain to the right and left lower legs. He was noted to have associated leg numbness. The physician assessed him as having degenerative disc disease with multifocal radiculopathy. The Board is indeed aware that the Veteran was afforded a VA peripheral nerves examination in April 2011, which does not support a finding that service connection is warranted. However, the Board finds that this report is somewhat internally inconsistent. Moreover, the examiner failed to adequately consider the Veteran's complete symptoms. Thus, the Board does not find the examiner's opinion to be probative, and the confirmed clinical findings in the private EMG, as well as the consistent reporting of radicular symptoms associated with the back disability in the private clinical notes, far outweigh the inadequate findings by the VA examiner. In particular, at the VA examination, the Veteran continued to report pain that starts in the back and radiates down the leg. He also reported intermittent numbness in his feet. The examiner proceeded to examine the "foot through the knee" and conducted a peripheral nerve examination, but largely ignored the radicular symptoms. The examiner noted that nerve conduction studies (NCS) were not performed, and then noted a lumbar spine x-ray report, which confirmed moderate degenerative disc disease and facet osteoarthritis at L3-S1, as well as a 2011 EMG report, which concluded, "There is electrical evidence of a mild to moderate sensory motor polyneuropathy in the lower extremities, which appears length dependent and has mixed features of axonal and myelin involvement. Differential for etiology includes endocrine disorders, vitamin deficiency, monoclonal gammopathy, or metabolic insult." Based upon this, the examiner concluded that the Veteran's foot numbness is associated with peripheral neuropathy, and went on to state that the peripheral neuropathy is not caused by the back disability. The basis for this opinion was that the Veteran's "EMG/NCS is not consistent with thoracolumbar DDD but diagnostic of sensory motor peripheral neuropathy, which is length-dependent involving the distal peripheral nerves." First, the examiner is referring, at least partially, to "NCS," which earlier was noted as not performed. Also, the examiner stated in one area of the report that the Veteran has lumbar spine degenerative disc disease, but then later reported that the findings are not consistent with "DDD," and rather represent sensory motor peripheral neuropathy. It is unclear to the Board why the examiner implied that both conditions cannot exist, or why the examiner inconsistently reported at one time that the Veteran has DDD and at another time that he does not. Furthermore, and perhaps most importantly, the examiner failed to assess any potential diagnosis for the Veteran's report that he has pain that starts in the back and radiates down the leg. The examiner ignored this symptom, which was reported on the day of the examination, and also is present throughout the record, as noted above. Rather, she focused entirely on the numbness of the soles of the feet and ignored other symptoms. For these reasons, the Board finds this VA examination report to be entirely inadequate for the purpose of analyzing the Veteran's claim on appeal. Thus, the Board finds that the Veteran's bilateral lower extremity radiculopathy has been sufficiently shown by the record as associated with his already service-connected back disability. In particular, confirmed private diagnostic testing reports clearly document L5-S1 radiculopathy in the Veteran. Accordingly, the evidence of record establishes that the Veteran's bilateral lower extremity radiculopathy is causally-connected to his service-connected back disability, and thus, service connection for such is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.310 (2012). ORDER Service connection for bilateral lower extremity radiculopathy is granted. ____________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs