Citation Nr: 1315736 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-37 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for bilateral patellofemoral dysfunction, claimed as a bilateral knee condition, to include as secondary to the service-connected lumbar paravertebral muscles myositis. 2. Entitlement to service connection for a thoracic disability, to include as secondary to the service-connected lumbar paravertebral muscles myositis. 3. Entitlement to service connection for genital numbness, to include as secondary to the service-connected lumbar paravertebral muscles myositis. 4. Entitlement to service connection for left L4-L5 radiculopathy, to include as secondary to the service-connected lumbar paravertebral muscles myositis. 5. Entitlement to service connection for trochanteric bursitis of the hips, to include as secondary to the service-connected lumbar paravertebral muscles myositis. 6. Entitlement to service connection for pelvic numbness, to include as secondary to the service-connected lumbar paravertebral muscles myositis. 7. Entitlement to service connection for osteopenia of the cervical spine, claimed as a cervical condition, to include as secondary to the service-connected lumbar paravertebral muscles myositis. 8. Entitlement to service connection for a bilateral ankle strain, claimed as a bilateral ankle condition, to include as secondary to the service-connected lumbar paravertebral muscles myositis. 9. Entitlement to service connection for peripheral neuropathy, to include as secondary to the service-connected lumbar paravertebral muscles myositis. 10. Entitlement to an initial evaluation in excess of 30 percent for major depressive disorder. 11. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from May 1977 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) from July 2008 and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. 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). The issues of entitlement to service connection for bilateral patellofemoral dysfunction, a thoracic disability, osteopenia of the cervical spine, claimed as a cervical condition, and a bilateral ankle strain, entitlement to an initial evaluation in excess of 30 percent for major depressive disorder, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Genital numbness had its onset in service. 2. L4-L5 radiculopathy and neuropathy of the lower extremities had its onset in service. 3. Trochanteric bursitis of the right and left hips had its onset in service. 4. Pelvic numbness had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for genital numbness, to include as secondary to the service-connected lumbar paravertebral muscles myositis, have been met. 38 U.S.C.A. §§ 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for L4-L5 radiculopathy and neuropathy of the lower extremities, to include as secondary to the service-connected lumbar paravertebral muscles myositis, have been met. 38 U.S.C.A. §§ 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 3. The criteria for service connection for trochanteric bursitis of the hips, to include as secondary to the service-connected lumbar paravertebral muscles myositis, have been met. 38 U.S.C.A. §§ 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 4. The criteria for service connection for pelvic numbness, to include as secondary to the service-connected lumbar paravertebral muscles myositis, have been met. 38 U.S.C.A. §§ 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for genital numbness, L4-L5 radiculopathy and neuropathy of the lower extremities, bilateral hips trochanteric bursitis and pelvic numbness. As this represents complete grants of the benefits sought on appeal, no discussion of VA's duty to notify and assist is necessary. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection will also be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2012). In addition to the elements of direct service connection and presumptive service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Service connection is in effect for lumbar paravertebral muscles myositis, major depressive disorder, scar of the left parietal region, and left eye postoperative pterygium. The service treatment records show that in December 1977 the Veteran complained of low back pain. He was diagnosed with a muscle bruise with no edema. Later in December 1977 he was diagnosed with mechanical low back pain. In February 1978 the Veteran reported falling in the shower two months before, striking his back. At treatment he had a one week history of low back pain. He was diagnosed with left sacroiliac joint pain. In May 1979 the Veteran complained of low back pain of three days duration. At a VA examination in December 1980 the Veteran complained of back pain and reported relief with analgesics, rest, and muscle relaxants. He was diagnosed with low back syndrome. VA treatment records show that the Veteran has continued to be treated for low back pain. At May 1993 treatment the Veteran complained of low back pain with radiation and numbness of the feet. The Veteran had a VA examination in February 1995 at which he complained of low back pain associated with numbness in both legs. No diagnosis was made regarding the numbness. In June 1997 the Veteran underwent another VA examination. He complained of low back pain with radiation to all areas of the back and occasional numbness of the calves and heels. There was no diagnosis made regarding the numbness or radiation. At a February 2007 VA examination the Veteran complained of chronic low back pain and a bilateral numbness sensation in the lower extremities. At March 2007 treatment the Veteran complained of low back pain that irradiated to both legs. September 2007 VA treatment records indicate that the Veteran had lumbar radiculopathy. December 2007 VA treatment records show radiation of pain to both legs with numbness and tingling. A June 2008 VA treatment note states that the Veteran had bilateral leg numbness, with the left worse than the right. In December 2008 the Veteran rated the left leg pain as 8 to 9 out of 10 in intensity. A March 2009 nerve conduction study showed evidence of early motor peripheral neuropathy dominantly demyelinating and of left L5-L4 radiculopathy. A private physician wrote in April 2009 that the Veteran's symptoms included lower extremity pain and numbness in his extremities, pelvic area and genitals. She felt it was more probable than not that the Veteran's hip problems were related to his fall during military service. The damage from the fall had caused body weight bearing problems, which had affected the hips. A July 2009 VA examiner felt that radiculopathy was not likely secondary to the lumbar myositis because lumbar myositis does not cause peripheral neuropathy, L4-L5 radiculopathy or osteopenia. The Veteran also had a VA genitourinary examination in July 2009 at which he reported developing a hot sensation in the genitals in 2007 that had been stable since onset without treatment. The examiner felt that the genital numbness was not caused by or a result of the lumbar paravertebral muscles myositis, stating that the lumbar paravertebral muscles have no relation to the genitalia and his claimed a hot sensation, not numbness. A VA physician reviewed the record in February 2013 and opined that the December 1977 in service injury had directly led to the Veteran's current lumbar spine condition. It was at least as likely as not that the service-connected back disability subsequently led to the peripheral neuropathy, lumbar radiculopathy, and to the genitourinary impairment. Considering all of the evidence of record, the Board finds that the Veteran's genital numbness, L4-5 radiculopathy and neuropathy of the right and left lower extremities, trochanteric bursitis of the hips and pelvic numbness cannot be disassociated from his service-connected lumbar paravertebral muscles myositis. The treatment records and VA examinations discussed above show a current disability. The February 2013 VA physician felt it was at least as likely as not that there was a causal connection between the service-connected lumbar paravertebral muscles myositis and these disabilities. Further, the April 2009 private physician felt it was more probable that the Veteran's hip problems were related to his fall during service. The record shows that the fall during service caused the service-connected lumbar paravertebral muscles myositis. The April 2009 and February 2013 opinions can be given probative value because they included histories and explanations of the Veteran's disabilities, which show that they were based on familiarity with the Veteran's medical history. See Stefl, 21 Vet. App. at 124. While the July 2009 VA examiners felt that radiculopathy and the genital numbness were not caused by or a result of the lumbar paravertebral muscles myositis, giving the benefit of the doubt to the Veteran, it is still at least as likely as not that they were caused or aggravated by the service-connected lumbar myositis, given the February 2013 opinion. See 38 C.F.R. § 3.310. In sum, based on the opinion of the VHA specialist, it is at least as likely as not that the genital numbness, L4-5 radiculopathy and neuropathy of the right and left lower extremities, trochanteric bursitis of the right and left hips and pelvic numbness are proximately related to a service-connected disability. Thus, service connection for genital numbness, L4-5 radiculopathy and neuropathy of the right and left lower extremities, trochanteric bursitis of the right and left hips and pelvic numbness is warranted. ORDER Service connection for genital numbness is granted. Service connection for L4-L5 radiculopathy and neuropathy of the right lower extremity is granted. Service connection for L4-L5 radiculopathy and neuropathy of the left lower extremity is granted. Service connection for trochanteric bursitis of the right hip is granted. Service connection for trochanteric bursitis of the left hip is granted. Service connection for pelvic numbness is granted. REMAND The Veteran last had a VA psychiatric examination in January 2010. He was subsequently found to be disabled by the Social Security Administration with a secondary diagnosis of affective disorders. Since it has been over three years since this last VA examination and it is possible from the record that his condition has worsened, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his major depressive disorder. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand this claim. The Veteran seeks entitlement to a TDIU. In this decision, the Board grants service connection for genital numbness, L4-5 radiculopathy and neuropathy of the right and left lower extremities, trochanteric bursitis of the right and left hips and for pelvic numbness and remands the issue of entitlement to an increased evaluation for major depressive disorder and service connection for bilateral patellofemoral dysfunction, a thoracic condition, osteopenia of the cervical spine, and a bilateral ankle strain. The assignment of a disability rating for the Veteran's genital numbness, L4-5 radiculopathy and neuropathy of the right and left lower extremities, bilateral hips trochanteric bursitis and pelvic numbness and the adjudication of his psychiatric disability claim as well as the claims of service connection may impact whether the Veteran satisfies the schedular requirements for a TDIU rating, as set forth in 38 C.F.R. § 4.16(a). As such, the claims are inextricably intertwined and must be considered together, and a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998). The Veteran wrote in a January 2012 statement that he was receiving treatment through VA. VA treatment records to July 2010 have been associated with the claims file. Therefore, the RO should obtain all relevant VA treatment records dated from July 2010 to the present before the remaining issues are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request that the Veteran provide sufficient information, and, if necessary, authorization, to obtain any additional evidence, not already of record, which pertains to the claims for an increased evaluation for major depressive disorder, service connection for bilateral patellofemoral dysfunction, a thoracic condition, osteopenia of the cervical spine, and a bilateral ankle strain, and entitlement to a TDIU. Document all unsuccessful attempts to obtain such records. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his major depressive disorder, of his in-service and post-service bilateral patellofemoral dysfunction, thoracic condition, osteopenia of the cervical spine, and bilateral ankle strain symptomatology, and the impact of his service-connected lumbar paravertebral muscles myositis, major depressive disorder, scar of the left parietal region, left eye post operative pterygium, genital numbness, left L4-5 radiculopathy, trochanteric bursitis of the hips, pelvic numbness, and peripheral neuropathy on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After the above development has been completed, schedule the Veteran for a VA psychiatric examination. The claims folder should be made available to and reviewed by the examiner. The examiner must also indicate the impact the Veteran's major depressive disorder has on his ability to secure or follow a substantially gainful occupation. All findings and conclusions should be set forth in a legible report. 4. Then readjudicate the appeal. If any benefits sought on appeal remain denied, the RO should provide the Veteran a supplemental statement of the case (SSOC), and provide the Veteran an opportunity to respond. 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs