Citation Nr: 1321455 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 03-32 193A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for lumbar radiculopathy, to include on a secondary basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to June 1975. The Veteran also had a subsequent period of service with a reserve component. This matter comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2007, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In March 2008, the Board remanded the issue of entitlement to service connection for lumbar radiculopathy. The claim was returned to the Board denied the claim for service connection for lumbar radiculopathy. In January 2010, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand, remanding the issue on the title page to the Board. Following re-certification of the appeal to the Board, the Veteran submitted additional evidence in a timely manner in the form of private treatment records. The Veteran's representative thereafter waived review of the newly submitted evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304(c) (2012). Therefore, a remand for AOJ review is not required and the Board will consider the evidence when adjudicating the appeal. FINDING OF FACT The most probative evidence shows that the Veteran lumbar radiculopathy is not related to service and was not caused or aggravated by his service-connected right hip strain. CONCLUSION OF LAW The requirements for establishing service connection for lumbar radiculopathy have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The Board finds that letters dated in November 2005, March 2006, March 2008, and February 2011 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a). These letters advised the Veteran regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. He was also advised of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last adjudicated in a December 2012 supplemental statement of the case. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post service treatment records, VA examination reports, hearing testimony, and lay statements. In addition, records and a VA medical opinion requested on remand have been obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim for service connection. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issue to the claimant and asked specific questions directed at identifying whether the Veteran met the criteria for service connection. Additionally, the Veteran volunteered his treatment history and symptoms since service. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), to include during his appeal to the Court, nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2006). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that his current lumbar radiculopathy was caused by injuries sustained during military service including during boot camp, when he fell to the dock while painting his ship, as well as when he was in a motor vehicle accident, when a ship he was on was in an accident, and/or when a ship he was on grounded on a sand barge while conducting war games. In the alternative, it is claimed that his current lumbar radiculopathy is due to his service connected right hip disorder. Initially, the Board notes that an earlier July 2005 rating decision denied the Veteran's claims of service connection for a lumbar spine disorder, sciatica, and sacroiliitis. The Veteran did not appeal this decision. Therefore, claims of service connection for these other back disorders are not before the Board and the below adjudication will be limited to whether his current lumbar radiculopathy is due to his military service or an already service connected disability. Service treatment records, including those surrounding the January 1974 abrasion and those dated in 1975, are negative for complaints or findings of numbness, tingling or neurological pain in the lower extremities, nor do those records reflect a diagnosis lumbar radiculopathy. While January 1973 and June 1973 treatment records documented treatment for right ankle pain and November 1973 treatment records documented treatment for right hip pain, none of these records reported the Veteran having neurological symptoms. Similarly, at the May 1975 separation examination, conducted one month after the April 1975 grounding, not only did the Veteran not report a history of lumbar radiculopathy but his neurological and lower extremities examinations were normal. The record shows the Veteran's complaints and treatment for low back pain post-service since at least 1979 (i.e., approximately 4 years post-service), it does not show him being diagnosed with lumbar radiculopathy until many years after his separation from military service and after he sustained a low back injury at work in 1984 and again in 1998. In an August 2005 statement, Dr. Norris, in the Discussion and Plan section of his report, noted the Veteran has low back pain with radiculopathy which likely started in 1972 in boot camp. It was noted that the Veteran has back pain with pain down both legs. The report stated, "He agrees that I would not fill out the forms from the VA about his injury in 1972 but have recommended he discuss these with his primary care physician." The report further stated that he has low back pain starting in 1972 after an injury in boot camp with a lumbar sprain. In a February 2011 VA examination, the Veteran reported a history of pain radiating down both legs for approximately 16 years. After examination of the Veteran, to include review of a prior MRI, the examiner noted the Veteran's lumbar radiculopathy is not secondary to a right hip strain as a hip strain does not cause radiculopathy. The examiner stated "by definition patients with lumbar radiculopathy have leg pain as a result of a nerve problem in the lower back." In a July 2012 addendum, the examiner, after a review of the record on appeal and the earlier examination of the Veteran, opined that the Veteran's lumbar radiculopathy is not due to the events that occurred in military service because service treatment records are absent for an event that would lead to the development of lumbar disc disease and radiculopathy and post-service records clearly indicate that the appellant first developed low back pain at least nine years after service as well as document low back injuries. The examiner further noted that lumbar disc disease, which is the root cause of radiculopathy, is common as one ages. It was also opined, as to Dr. Norris's August 2005 opinion, that it had to be assumed that the clinician did not have access to the Veteran's service treatment records or post-service medical records when providing the opinion because it is based on a faulty premise (i.e., the Veteran having a documented low back injury while on active duty), is not consistent with the medical documentation found in the record, and contains no rationale. This opinion was provided following examination of the Veteran and complete claims file review, referenced information in the file, and is consistent with the in-service and post-service medical evidence of record; thus, the Board finds this opinion is highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Conversely, Dr. Norris's August 2005 statement appears to simply be referencing the Veteran's recited history, is inconsistent with the service treatment records which reveal no complaints concerning neurological symptoms or lumbar radiculopathy, and provides no rationale for the statement that the condition began in 1972 in boot camp. Accordingly, this opinion is provided little, if any, probative weight. Id.; 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."). Additionally, although the Veteran is competent to state that he experienced pain, numbness and tingling, there is no indication that he has specialized training in diagnosing neurological disorders or determining their etiology. The diagnosis and etiology of lumbar radiculopathy requires medical testing and medical expertise to determine. Thus, the Veteran's contention as to the diagnosis and etiology of his lumbar radiculopathy is not a competent medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, whether the symptoms the Veteran claims to have experienced in service or following service are in any way related to his current lumbar radiculopathy is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertion on this point. For the reasons set forth above, the Board finds the most probative evidence is against a finding that the Veteran's lumbar radiculopathy is related to service or was manifest within one year following discharge from service. Accordingly, the Board finds that entitlement to service connection for lumbar radiculopathy is not warranted on a direct or presumptive basis. 38 C.F.R. § 3.303, 3.307, 3.309(a). As for secondary service connection, the Veteran also contends that his current lumbar radiculopathy is due to his service-connected right hip disorder. However, the record does not contain a medical opinion linking the Veteran's lumbar radiculopathy to any service connected disability. In fact, the February 2011 VA examiner, after a review of the file and an examination of the Veteran, opined that the Veteran's lumbar radiculopathy is not secondary to his service connected right hip strain because a hip strain does not cause radiculopathy and by definition, patients with lumbar radiculopathy have leg pain as a result of a nerve problem in the lower back. Further, in the July 2012 addendum, it was opined that lumbar radiculopathy is not caused by or aggravated by his service connected right hip strain because a right hip strain is not an etiology for or a condition that aggravates lumbar radiculopathy. These medical opinions are not contradicted by any other medical evidence of record. As noted above, because the Veteran did not appeal the July 2005 rating decision that denied service connection for lumbar spine disorder, sciatica, and sacroiliitis, these issues are not before the Board. Accordingly, lumbar radiculopathy resulting from these nonservice connected disabilities cannot be service connected. 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). While the Veteran believes his lumbar radiculopathy is related to his service connected hip disability, as noted above, his lay assertions as to the etiology of his lumbar radiculopathy is not a competent medical opinion. See Jandreau, supra. The Board finds the VA examiner's medical opinion significantly more probative than the Veteran's lay assertions. Therefore, the Board finds that the preponderance of the probative evidence of record shows that the Veteran's lumbar radiculopathy was neither caused nor aggravated by his service connected right hip disability. See Allen, supra. Accordingly, entitlement to service connection for lumbar radiculopathy is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for lumbar radiculopathy is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs