Citation Nr: 1320962 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 07-24 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for left leg sciatica. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Appellant served on active duty for training from August 1982 to November 1982, with additional service in the Air Force Reserve. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Appellant's claim for service connection for left leg sciatica. This claim was previously before the Board in March 2011 and was remanded to the Appeals Management Center (AMC) for further development. That development, having been completed, this case is once again before the Board. A review of the Virtual VA paperless claims processing system revealed nothing further pertinent to the present appeal. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence shows that left leg sciatica is at least as likely as not the result of military service. CONCLUSION OF LAW Left leg sciatica was incurred in military service. 38 U.S.C.A. §§ 101(24), 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.6 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA With respect to the claim for entitlement to service connection for left leg sciatica, because the claim is granted herein, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Appellant in proceeding to decide the issue on appeal. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159 (2012). Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303 (2012). VA law provides that active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002 & Supp. 2009); 38 C.F.R. § 3.6(a), (d) (2012); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2010). Service connection for a person on INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in line of duty. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). VA's General Counsel has held that it was the intention of Congress when it defined active service in 38 U.S.C.A. § 101(24) to exclude INACDUTRA during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. VAOPGCPREC 86-90 (Jul. 18, 1990). Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. See Cahall v. Brown, 7 Vet. App. 232, 237 (1994). Service department records are binding on VA for purposes of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); 38 C.F.R. § 3.203 (2012), limiting the type of evidence accepted to verify service dates. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 494-95 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) . Analysis The Appellant contends that his claimed left leg sciatica resulted from his work as an air cargo handler during his service in the Air Force Reserve. He does not claim that his left leg sciatica arose from a specific injury, but rather that it is related to lifting heavy boxes, pallets, and other materials during 23 years of reserve service in which he worked one weekend per month plus two weeks per year. He asserts that his civilian job did not involve lifting heavy items. In support of his claim, the Appellant has submitted several buddy statements. One individual stated that he served with the Appellant and first recalled the Appellant complaining of pain in the lower back and on the left side of his body in 1993. The individual said that such pain continued until the Appellant's separation and sometimes limited his ability to do his job as an air cargo specialist. Two other individuals indicated that they worked with the Appellant at his civilian job and they stated that since 1995 they had witnessed him complaining of pain in his lower back and legs. They related that often he would stop work until the pain subsided. As noted above, the Appellant had ACDUTRA from August 1982 to November 1982, with additional service in the Air Force Reserve. The record reflects that he was discharged from the Air Force Reserve in June 2005. The service treatment records reflect no complaints, findings, or treatment of any left leg sciatica during the Appellant's period of ACDUTRA from August to November 1982. Records from the Appellant's reserve service dated from August through December 2001 show that the Appellant had been on a profile for approximately 1 year based on a statement from his unit indicating that he had a back problem. A September 2001 Physical Profile Serial Report shows that the Appellant could not participate in military duties for pay or points. In October 2001, the Appellant was requested to provide a current letter from his physician concerning his recent back problems. Private treatment records show that in August 2002, the Appellant reported that he gets low back pain when he does lifting and that he has sciatic nerve problems. An August 2004 chiropractic note indicates that the Appellant had sciatic pain. An April 2006 letter from the Appellant's chiropractic orthopedist indicates that the Appellant was initially seen December 8, 2000. His primary complaint was low back pain with left leg sciatica. The Appellant describes the pain as an aching, shooting type of discomfort aggravated by long standing, bending, and twisting. After performing a physical examination, the assessment included lumbosacral radiculitis, sciatica, and myalgia. A letter from another chiropractor dated in May 2012 stated that the Appellant had been treated for bilateral sciatic pain, more on the left than the right, since August 2004 and that he was treated periodically for the following three years. The Appellant was provided with a VA joints examination on May 2011. At this examination, the examiner reviewed the Appellant's claims file and took note of his complaints of sciatic during INACDUTRA. The examiner did not find any evidence of radiculopathy. The Appellant was also provided with a VA peripheral nerves examination on May 2011. At this examination, the examiner reviewed the Appellant's claims file and took note of his complaints of sciatic during INACDUTRA. The examiner performed objective testing and noted that the Appellant reported a mild decrease in sensation over the left leg as compared to the right. However, the examiner noted that he did not find evidence of lumbar radiculopathy or any other neurological involvement. The Appellant was provided with an additional VA peripheral nerves examination on April 2012. At this examination, the examiner reviewed the Appellant's claims file and took note of his complaints of sciatic during INACDUTRA. The Appellant complained of moderate constant pain, moderate intermittent pain, moderate paresthesias/dysethesias, and moderate numbness of the left lower extremity. The examiner performed objective testing and revealed mild incomplete paralysis of the sciatic nerve. Despite these findings, the examiner opined that the Appellant had no peripheral nerve condition or peripheral neuropathy and no objective findings of sciatic nerve problems. The Board finds that the evidence of record supports service connection for left leg sciatica. While there is no evidence of any specific incident of trauma pertaining to the Appellant's left leg sciatica during a period of ACDUTRA or INACDUTRA, the Appellant asserts that his claimed condition either began or was aggravated during such service. As there is evidence of left leg sciatica during the time period when the Appellant had reserve service and some lay and medical evidence suggesting that such condition limited his performance of his reserve duties, as well as current findings in the May 2011 and April 2012 VA examinations showing a mild decrease in sensation over the left leg and mild incomplete paralysis of the sciatic nerve in the left leg, the Board finds that the first two elements of service connection are established. See Shedden, 381 F.3d at 1167; see also Caluza, 7 Vet. App. at 506; see also Hickson, 12 Vet. App. at 253; 38 C.F.R. § 3.303. Thus, the inquiry turns upon a finding of nexus. Id. The Board further finds the Appellant's lay testimony to be competent and credible. The Board notes that the Appellant has asserted continuous symptoms since service during his periods of INACDUTRA. For instance, the April 2006 private treatment record from the Appellant's chiropractor states that the Appellant began treatment for an assessment of sciatica in 2000 and that he is currently being treated. In subsequent private treatment records from other treatment providers the Appellant has also received treatment for continued complaints of sciatica, as seen in the May 2012 letter from a different chiropractor. Further, despite the fact that the 2011 and 2012 VA examinations did not diagnosis the Appellant with sciatica or another peripheral nerve disorder, the objective findings of mild incomplete paralysis of the sciatic nerve in the left leg, as well as the Appellant's continued subjective complaints of pain, numbness, and paresthesias in the left leg support the Appellant's testimony that he has continued to suffer since military service from the same condition which has been previously identified by private treatment providers as sciatica. The Veteran is competent to report his symptoms. See Barr, 21 Vet. App. at 307 (noting that lay testimony is competent to establish observable symptomatology). The Board assigns these lay statements significant weight. See Buchanan, 451 F.3d at 1337; Layno, 6 Vet. App. at 469. Thus, the Appellant has provided competent and credible testimony that his left leg sciatic has continued since service discharge. See 38 C.F.R. § 3.303(b); see also Charles, 16 Vet. App. 370; Caluza, 7 Vet. App. at 511. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Given the demonstration of current symptoms of sciatica along with private treatment records showing symptoms occurring during the same period of time that the Appellant was on INACDUTRA, as well as the Board's findings that the Appellant is competent and credible to report that he has had left leg sciatic pain, numbness, and paresthesias since his military service, despite a negative finding by the 2011 and 2012 VA examinations, reasonable doubt is resolved in favor of the Appellant and service connection for a left leg sciatica is granted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for left leg sciatica is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs