Citation Nr: 1314420	
Decision Date: 05/01/13    Archive Date: 05/15/13

DOCKET NO.  06-04 475	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to service connected thoracolumbar strain.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran had active service from July 1983 to June 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional office in Winston-Salem, North Carolina.  The appeal has subsequently been transferred to the Columbia, South Carolina, RO.

This matter was previously remanded by the Board for further development in January 2010, June 2011, and August 2012.  The Board is now 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 issue of entitlement to service connection for radiculopathy of the left lower extremity was also previously remanded.  In August 2012, the Appeals Management Center issued a rating decision granting this claim.  Since this grant constituted a full grant of the benefits sought on appeal, this claim is no longer in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993).  As such, the Veteran's claim for benefit for radiculopathy of the left lower extremity will not be addressed in this decision.

The Veteran is currently service connected for thoracolumbar strain (claimed as degenerative disc disease at L4-5, and L5-S1), among others, at a 10 percent disability rating, effective July 1, 2005.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDING OF FACT

The Veteran does not have radiculopathy of the right lower extremity, to include as secondary to service connected thoracolumbar strain.




CONCLUSION OF LAW

The criteria for service connection for radiculopathy of the right lower extremity have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the appellant's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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. 

Prior to initial adjudication of the Veteran's claim, in January 2005, the Veteran submitted a signed statement acknowledging that the VA notified him of the evidence or information needed to substantiate his claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187.  The Veteran was sent subsequent letters in December 2005 and April 2010.  These letters indicated the types of information and evidence necessary to substantiate the claims, and the division of responsibility between the Veteran and VA for obtaining the evidence.  The April 2010 notice letter also informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006).

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify. 

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the claims file.  The Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law.  The record indicates that the Veteran was afforded VA examinations in February 2005, June 2010, September 2011, and September 2012 and the results of which have been included in the claims file for review.  The most recent September 2011 VA examination involved review of the claims file and thorough examinations of the Veteran and the opinion was supported by sufficient rationale.  Therefore, the Board finds that the examination is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim.

Additionally, as stated above, the Board finds there has been substantial compliance with its August 2012 remand directives.  The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.)  As stated above, the Veteran was afforded an additional VA examination.  Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remands.  See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  Importantly, the Board notes that the Veteran is represented in this appeal.  See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has submitted argument and evidence in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected.

II. Merits of the Claim

The Veteran alleges that he experiences radiculopathy of the right lower extremity secondary to his service connected thoracolumbar strain.

Governing Laws and Regulations

Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service.  38 C.F.R. § 3.303(d).

Generally, the evidence must show: (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.  38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)).

Service connection may also be granted for chronic disabilities, such as organic disease of the nervous system, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service.  38 C.F.R. § 3.303(b)(2012).  The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) Here, the Board notes that the Veteran's claimed radiculopathy of the right lower extremity is not subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.309(a).

Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service- connected disease or injury. 38 C.F.R. § 3.310(a) (2012).  With regard to the matter of establishing service connection for a disability on a secondary basis, the Court has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Additionally, when aggravation of a non-service-connected disability is proximately due to or the result of a service- connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Id.; see also 38 C.F.R. § 3.310(b).  With regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17  (1995). 

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence.  See 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. 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 her 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 claims.  The Veteran must not assume 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 appellant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Factual Background and Analysis

Upon review of the service treatment records, the Board notes that the Veteran's radiculopathy was not shown in the service treatment records.  Rather, the Veteran does not allege that it was diagnosed during service but that it was secondary to his service connected thoracolumbar strain (claimed as degenerative disc disease at the L4-5, L5-S1). 

The Veteran was afforded a VA examination in February 2005 where upon examination of the spine, the examiner determined he had negative straight leg raising bilateral with 5/5 motor strength in the lower extremities and no evidence of atrophy.  An x-ray revealed unremarkable bilateral feet, ankles, knees and lumbosacral spine.  No diagnosis of radiculopathy was made.

In June 2010, the Veteran underwent another VA examination where he reported that the pain in his back radiated down into his left leg.  The examiner stated no evidence of radiculopathy was found within the record.  There was no electrophysiologic evidence of acute or chronic left lumbosacral radiculopathy, perineal neuropathy across the left fibular head, or sensory or motor polyneuropathy.  The examiner determined the sensory and motor examination of the extremities was normal to include strength, sensation, tone and with the absence of atrophy.

In September 2011, the Veteran underwent a VA spine examination where he reported occasional left leg pain in the posterior thigh to just above the back of the knee.  There was no radiation of pain below the knee and no numbness.  He described his symptom as tingling, sharp pain.  He stated it occurred off and on for the past four years.  He denied bowel or bladder dysfunction and weakness or atrophy.  A physical examination revealed normal strength in the hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension.  There was no muscle atrophy.  The deep tendon reflexes were normal in the knee and ankle.  The Veteran's sensation to light touch of the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes were also normal.  The Veteran had radicular pain with mild intermittent pain (usually dull), and paresthesias and/or dysesthesias, in the left lower extremity.  Upon review of the evidence of record and a physical examination the examiner determined:

It is my opinion with my experience that this [Veteran] does not have true lumbar radiculopathy.  A true radiculopathy usually presents in a specific dermatomal pattern.  This [Veteran's] reported radiculopathy does not occur in a true radicular patter.  He has pain only in the posterior thigh.  No symptoms below the knee.  While he has subjective complaints of radicular pain in the left posterior thigh there is no objective evidence of this on exam or tests. He has no sensory loss, no motor [deficits] or atrophy.  He has an essentially negative MRI of the lumbar spine other than a broad based disc bulge and central annular tear.  This would explain his low back pain but not his left leg pain.  He has also had an EMG study performed which showed no [deficit] in motor conduction or velocity or sensory function of the nerves of the left lower extremity.  Therefore, I cannot conclude that his [Veteran] has a radiculopathy of the lower extremity and therefore is obviously not related to his service connected disability of a throacolumbar strain. 

Finally, the Veteran underwent a VA examination in September 2012 where he was diagnosed with radiculopathy of the left thigh.  However, regarding the right lower extremity, the examiner determined there was no functional loss, normal strength in knee flexion and extension, normal Lachman test, normal posterior drawer test, and no medial-lateral instability.  No diagnosis of radiculopathy of the right lower extremity was made.

In the absence of proof of present disability there can be no successful claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes).  The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  In this case, the September 2012 examiner diagnosed radiculopathy of the left lower extremity and opined it was secondary to his service connected lumbar spine.  However, there is no competent evidence showing that the Veteran has radiculopathy of the right lower extremity, let alone secondary to his service connected thoracolumbar strain, at any point during the claim.  Accordingly, the Veteran has not shown a current disorder for which service connection can be granted, whether on a direct basis or a secondary basis. 

VA must consider all favorable lay evidence of record.  38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498  (1995).  Accordingly, in addition to the medical evidence above the Board has considered the lay evidence submitted by the Veteran.   A layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  However, lay persons may or may not be competent to opine as to medical etiology or render medical opinions.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999).  In most circumstances, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation.  Jones v. Brown, 7 Vet. App. 134, 137  (1994); Degmetich, 104 F.3d 1328. 

The Board acknowledges the Veteran's testimony and his belief that he has radiculopathy of the right lower extremity that is secondary to his service connected thoracolumbar strain.  However, while the Veteran is competent to report his symptomatology, given the nature of the claim at issue, he does not have the expertise needed to render a diagnosis or offer an opinion as to whether his claimed symptoms are attributable to a particular diagnosed disability.  Accordingly, his opinions are not probative and are outweighed by the medical evidence of record that does not show the presence of radiculopathy of the right lower extremity 

With respect to the foregoing, the Board recognizes that the Veteran may experience pain in the right lower extremity; however, the Board notes that pain does not in and of itself constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). As noted, the service treatment records and all post-service treatment records were negative for underlying pathology.

In sum, the evidence does not support a finding that the Veteran has current radiculopathy of the right lower extremity that is related to his service, or to any aspect thereof.  As the preponderance of the evidence is against the Veteran's claim, the "benefit of the doubt" rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).








ORDER

Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to thoracolumbar strain, is denied.




____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs