Citation Nr: 1317865 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 07-34 619 ) 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 a cervical spine disability, including as secondary to a service-connected lumbar spine disability. 2. Entitlement to service connection for a psychiatric disability, including as secondary to a service-connected lumbar spine disability. 3. Entitlement to service connection for erectile dysfunction, including as secondary to a service-connected lumbar spine disability. 4. Entitlement to service connection for a right knee disability, including as secondary to a service-connected lumbar spine disability. 5. Entitlement to service connection for radiculopathy of the lower extremities, including as secondary to a service-connected lumbar spine disability. 6. Entitlement to an increased rating for a lumbar spine disability, currently rated 60 percent. ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board remanded the appeal in December 2009 to schedule the Veteran for a hearing. The Veteran indicated in a March 2010 statement that he no longer desired to testify at a hearing. His request for a hearing is therefore withdrawn. In a November 2012 decision, the Board reopened the claim for service connection for a cervical spine disability, and remanded that claim, along with the remaining claims on appeal for further development. Although the Veteran has been previously represented by the Puerto Rico Public Advocate for Veterans Affairs, in several statements, most recently received in November 2012, the Veteran expressed his desire to revoke that representation and proceed pro se. The Veteran has also raised claims of entitlement to service connection for a right index finger disability and sinusitis. Those claims are not the subject of a proper appeal to the Board. Therefore, those claims are referred to the RO for appropriate action. This decision grants service connection for radiculopathy of the lower extremities,. The remaining issues are REMANDED to the RO via the Appeals Management Center, in Washington, D.C. FINDING OF FACT There is an approximate balance of favorable and unfavorable evidence as to whether the Veteran has radiculopathy of the lower extremities as a result of his service-connected lumbar spine disability. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for radiculopathy of the lower extremities, secondary to the service-connected lumbar spine 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 Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2012). Service connection is permitted not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that the Veteran has a diagnosis of peripheral neuropathy of the lower extremities, which the RO has already related to his service-connected lumbar spine disability. Thus, that disorder will not be considered in this decision, which will focus on the claimed radiculopathy of the lower extremities. The Veteran claims that he has radiculopathy of the lower extremities secondary to his service-connected lumbar spine disability. A September 2003 letter from a private physician show that June 2003 electrodiagnostic testing showed no evidence of lumbar radiculopathy. During a March 2004 VA examination, the Veteran complained of low back pain radiating into the lower extremities. Examination showed 4/5 strength in the left hip and knee and 4/5 throughout the remainder without atrophy, 2+ reflexes in the right knee and 1+ reflexes in the left knee with absent reflexes in the ankles, and decreased sensation to light touch and pinprick over the left L4-5 and L5-S1 dermatomes. February 2007, March 2007 and August 2009 letters from private physicians show diagnoses of lumbar radiculopathy. During a May 2007 VA examination, the Veteran complained of low back pain radiating into the lower extremities. Examination showed 5/5 strength in the hips and knees and 4/5 in the ankles and toes without atrophy, 2+ reflexes in the right knee and 1+ reflexes in the ankles and left knee, and decreased sensation to light touch and pinprick. The examiner noted that the loss of sensation did not follow any specific dermatomal pattern, specifying that it was nonradicular. During an October 2008 VA examination, the Veteran complained of low back pain radiating into the lower extremities. Examination showed 5/5 strength in the hips and 4/5 throughout the remainder without atrophy, 2+ reflexes in the knees and 1+ reflexes in the ankles, and decreased sensation to light touch and pinprick. The examiner noted that there was nondermatomal loss of sensation and indicated that electrodiagnostic testing was not warranted. During an October 2011 VA examination, the Veteran complained of low back pain radiating into the lower extremities. Examination showed 4/5 strength throughout without atrophy, 2+ reflexes in the knees and 1+ reflexes in the ankles, and normal sensation to light touch. Straight leg raising was negative bilaterally. The examiner indicated that the Veteran has mild paresthesias or dysesthesias and numbness. However, the examiner concluded that there was no evidence of radiculopathy of the lower extremities. A December 2011 report of private electrodiagnostic testing showed evidence of polyradiculopathy from L4 to S1. During a June 2012 VA examination, the Veteran complained of low back pain radiating into the lower extremities. Examination showed 4/5 strength throughout without atrophy, 2+ reflexes in the knees, 1+ reflexes in the ankles, and decreased sensation to light touch. Straight leg raising was negative bilaterally. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. During a February 2013 VA examination, the Veteran complained of low back pain radiating into the left lower extremity. Examination showed 4/5 strength throughout without atrophy, absent reflexes in the knees and ankles, and normal sensation to light touch. Straight leg raising was negative bilaterally. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The examiner ordered electrodiagnostic testing of the lower extremities, which revealed no evidence of lumbosacral radiculopathy. The examiner concluded that there was no evidence of lumbar radiculopathy on physical examination or on electrodiagnostic testing. The Board finds that there is an approximate balance of favorable and unfavorable evidence as to whether the Veteran has radiculopathy of the lower extremities as a result of his service-connected lumbar spine disability. The June 2003 and February 2013 reports of electrodiagnostic testing showed no evidence of lumbar radiculopathy and VA examination reports from May 2007 to February 2012 showed no evidence of radiculopathy of the lower extremities. However, a March 2004 VA examination indicated lumbar radiculopathy; February 2007, March 2007, and August 2009 letters from private physicians showed diagnoses of lumbar radiculopathy; and a December 2011 report of electrodiagnostic testing showed evidence of lumbar radiculopathy. The Board finds the reports of electrodiagnostic testing to be of greatest probative value as they are a diagnostic tool designed to detect the presence of radiculopathy associated with spine disabilities. Hayes v. Brown, 5 Vet. App. 60 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190 (1992)). In this case, however, even that testing has not been definitive of whether the Veteran has lumbar radiculopathy. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has radiculopathy of the lower extremities as a result of his service-connected lumbar spine disability. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for radiculopathy of the lower extremities, as secondary to the service-connected lumbar spine disability, is warranted. ORDER Service connection for radiculopathy of the lower extremities, secondary to the service-connected lumbar spine disability, is granted. REMAND Regrettably, another remand is required on the remaining claims. In the remand portion of the November 2012 decision, the Board requested that the Veteran be scheduled for VA examinations and for consideration of pertinent evidence specific to the evaluation of the lumbar spine disability. With respect to the cervical spine disability, the Board requested an opinion on whether the disability had been aggravated by the service-connected lumbar spine disability. An opinion was obtained in February 2013. However, the rationale provided was incomplete. The examiner merely noted that the disabilities involved different anatomical areas not related to each other. An examiner should be asked to provide a detailed rationale for the opinion, in compliance with the November 2012 remand. Stegall v. West, 11 Vet. App. 268 (1998). With respect to the psychiatric disability, the Board requested an opinion as to whether the disability had been aggravated by the service-connected lumbar spine disability. Although an opinion was obtained in February 2013, the rationale was incomplete. The rationale did not specifically address the aggravation aspect of the claim. An examiner should be asked to provide a detailed rationale for the opinion, in compliance with the November 2012 remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that neither the agency or original jurisdiction nor the VA examiner considered the report of an October 2012 private psychiatric evaluation. Thus, that report should be considered on remand. That report contains diagnoses of major depression, mood disorder related to organic conditions, and posttraumatic stress disorder (PTSD) and provides an opinion that the Veteran's mental disorders are secondary to his past military service stressors and primary conditions. The Board notes that raises the question of whether the Veteran has PTSD related to an in-service stressor, identified in the report as witnessing a fellow soldier lose his left hand when a blasting cap exploded. Thus, the claim for PTSD due to that event should be considered in the readjudication of his claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). With respect to the right knee disability, the Board requested an opinion on whether the disability had been aggravated by the service-connected lumbar spine disability. An opinion was obtained in February 2013. However, the rationale was incomplete. The examiner merely noted that the disabilities involved different anatomical areas not related to each other. Thus, the examiner should be asked to provide a detailed rationale for the opinion, in compliance with the November 2012 remand. Stegall v. West, 11 Vet. App. 268 (1998). With respect to the evaluation of the lumbar spine disability, the Board requested an examination to determine the current severity of the disability and for consideration of an October 2011 VA examination report. Although the Veteran was afforded an examination, in readjudicating the claim, the supplemental statement of the case did not consider the October 2011 VA examination report. Thus, another supplemental statement of the case that specifically includes consideration of that report is needed, in compliance with the November 2012 remand. Stegall v. West, 11 Vet. App. 268 (1998). Upon further review, the Board notes that the report of a June 2012 VA examination was also not previously considered in the adjudication of the claim for increase. Thus, that report should also be considered on remand. With respect to the erectile dysfunction, the Board requested that the VA examiner evaluating the Veteran's lumbar spine disability identify all neurological residuals, to include any bowel or bladder impairment, or erectile dysfunction. Although the examiner indicated that the Veteran did not have any neurologic abnormalities or findings related to the back condition such as bowel or bladder problems, the examiner did not specifically address the claimed erectile dysfunction. The Veteran is competent to say that he suffers from difficulties with erections. Layno v. Brown, 6 Vet. App. 465 (1994). Thus, an opinion on whether he has erectile dysfunction and, if so, whether it is related to the lumbar spine disability is still needed. VA outpatient treatment records dated through February 2013 have been associated with the claims file. Because there may be outstanding VA medical records that contain information pertinent to the Veteran's claims, an attempt to obtain any VA records since that time should be made. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain any VA outpatient treatment reports dated since February 2012. 2. Send the Veteran a notice letter specific to the issue of entitlement to service connection for PTSD. 3. Attempt to verify any reported stressors, including witnessing a fellow soldier lose his left hand when a blasting cap exploded. 4. Schedule the Veteran for a VA examination to determine whether he has PTSD due to any verified stressor or whether any psychiatric disability is aggravated by the service-connected back disability. The examiner must review the claims file and must note that review in the report. The examiner should provide a detailed rationale based on sufficient facts or data with reference to medical literature, if possible. The examiner should be advised of any verified stressors. (a) The examiner should provide a full multiaxial diagnosis and should state whether or not the Veteran meets each criterion for a diagnosis of PTSD. (b) If the Veteran meets the criteria for a diagnosis of PTSD, then the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the PTSD is attributable to an in-service stressor. (c) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disability, including depressive disorder, was aggravated (increased in severity beyond the natural progress of the disorder) by the Veteran's service-connected lumbar spine disability. 5. Schedule the Veteran for VA examinations to determine whether a cervical spine disability, erectile dysfunction, and a right knee disability are due to or aggravated by the service-connected lumbar spine disability. The examiner should provide a detailed rationale based on sufficient facts or data with reference to medical literature, if possible. The examiner must review the claims file and must note that review in the report. (a) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed cervical spine disability, including cervical myositis, cervical strain, or cervical degenerative disc disease, was caused by or aggravated (increased in severity beyond the natural progress of the disorder) by the Veteran's service-connected lumbar spine disability. (b) The examiner should state whether or not the Veteran has erectile dysfunction. (c) If the Veteran has erectile dysfunction, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the erectile dysfunction was caused by or aggravated (increased in severity beyond the natural progress of the disorder) by the Veteran's service-connected lumbar spine disability. (d) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right knee disability, including degenerative arthritis of the right knee, patellar chondromalacia of the right knee, and a medial meniscal tear of the right knee, was aggravated (increased in severity beyond the natural progress of the disorder) by the Veteran's service-connected lumbar spine disability. 6. Then, readjudicate the claims, to include service connection for PTSD. If any action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. The supplemental statement of the case should consider the October 2012 private psychiatric report and the October 2011 and June 2012 VA examination reports. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs