Citation Nr: 1330020 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 11-01 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for lumbar radiculopathy of the toes and feet of bilateral lower extremities as secondary to service-connected lumbosacral strain. 2. Entitlement to service connection for meralgia paresthetica of the cutaneous nerve of the left lower extremity as secondary to service-connected lumbosacral strain. 3. Entitlement to service connection for meralgia paresthetica of the cutaneous nerve of the right lower extremity as secondary to service-connected lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from June to December 1992. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2010 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida, which-in pertinent part, denied the benefits sought on appeal. The RO in Newark, New Jersey, exercises current jurisdiction of the claims file. The Board construes the claims on appeal as listed on the title page of this decision. As clarified at his hearing, his disagreement as to the denial of service connection for numbness in his legs was intended to encompass the RO's failure to grant a separate rating for radiculopathy when evaluating his lumbosacral strain. Although not expressly adjudicated by the RO, the claim has been impliedly considered in addressing neurologic disability to the lower extremities. As the instant decision grants service connection for radiculopathy, there is no prejudice to the Veteran in an appellate adjudication at this time. The Veteran appeared at a Board hearing in September 2011 before the undersigned Veterans Law Judge. A transcript of the hearing testimony is of record and has been reviewed. The Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal. The Board has considered the documents in both files while reviewing this appeal. The issues of entitlement to service connection for meralgia paresthetica of the cutaneous nerve of the left and right lower extremities as secondary to service-connected lumbosacral strain 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. FINDING OF FACT The preponderance of the evidence of record shows bilateral lumbar radiculopathy of the toes and feet is causally connected to the service-connected lumbosacral strain. CONCLUSION OF LAW The criteria for an award of service connection for the Veteran's bilateral lumbar radiculopathy of the toes and feet have been met. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In as much as the Board's decision below is favorable to the Veteran, discussion of VA's compliance with VCAA notice and assistance requirements would serve no useful purpose. Applicable Legal Requirements A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis Service connection is in effect for lumbosacral strain via a June 1993 rating decision. An August 2009 VA examination report reflects a medical finding of lumbar spine-related radiculopathy that manifested as pain and tingling of the toes and feet. Hence, Wallin Elements 1 and 2 are shown by the evidence record. The Board now addresses Element 3. There has been some confusion in this case as to the exact nature of the Veteran's claims. His June 2009 claim, and his representative's transmittal of the claim, simply seeks entitlement to service connection for a neurological condition of each lower extremity as secondary to the service-connected back condition. The RO's examination request, however, asked for a medical opinion as to whether the Veteran's "claimed condition of peripheral neuropathy" is connected to his service-connected back disability. The August 2009 examination report reflects the objective findings on clinical examination included decreased sensation and reflexes in the lower extremities. The medical evidence from that point, however, requires interpretation. The examiner's opinion was as follows: "The Veteran's claimed neurological condition (tingling in his toes and feet) is as likely as not related to the S/C condition of lumbar disc derangement. The Veteran's complaints of pain in his bilateral quadriceps is not at least as likely as not related to the S/C condition of lumbar derangement." The examiner then provided the following rationale: After carefully reviewing the Veteran's C-file, current medical records and diagnostic studies, and pertinent medical literature, I have reached the above opinions. The Veteran has documentation of severe pain in his lower back in service records reviewed from 1992. He has radicular signs on today's exam that reproduces his complaints of bilateral toe and foot pain. This is a common symptom seen in moderate to severe lumbar disc derangement. Of note, the diagnosis is not peripheral neuropathy but it is directly related to the lumbar spine condition. The Veteran's complaints of bilateral quadriceps pain is more likely related to meralgia paresthetica as documented from electrodiagnostic testing performed in 10/29/04. (Emphasis added). The Board agrees in part with the Veteran's representative's assertions in the August 2011 Statement of Accredited Representative that the RO misinterpreted the examiner's opinion. In light of the entirety of the examiner's rationale, the Board reads the italicized part of the examiner's opinion to mean that, while the Veteran's bilateral toe and foot pain is directly related to his lumbar spine condition, the diagnosis of those symptoms is not peripheral neuropathy. Thus, an award of service connection for the radicular signs noted on examination, and attributable to the service-connected lumbar disability, is warranted here. ORDER Entitlement to service connection for lumbar radiculopathy of the toes and feet of bilateral lower extremities as secondary to service-connected lumbosacral strain is granted. REMAND Additional clarification is needed from the examiner who conducted the August 2009 examination to determine whether an award of service connection is also warranted for bilateral meralgia paresthetica. However, the Board rejects the representative's assertion that an Independent Medical Opinion is required. Rather, the August 2009 examiner is capable of clarifying his diagnoses and opinion. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and obtain the names, addresses, and approximate dates of treatment of all health care providers, VA and non-VA, who treated his lumbar spine disorder since September 2011. After he has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 2. After the above is complete, the AMC/RO will send the claims file to the examiner who conducted the August 2009 examination. Ask the examiner to address the following: After reviewing the records added to the file since the 2009 examination, to include the June 2010 MRI examination and September 2010 EMG, the examiner is asked to provide an explanation for the opinion that there is not at least a 50-percent probability that the diagnosed bilateral meralgia paresthetica is causally related to the service-connected lumbar spine disability. Please identify all extremities affected by the meralgia paresthetica. The examiner is also asked to opine whether there is at least a 50-percent probability that the diagnosed bilateral meralgia paresthetica is aggravated, that is-chronically worsened, by the service-connected lumbar spine disability. If so, the examiner is asked to specify the permanent, measurable increase in the severity of the diagnosed bilateral meralgia paresthetica that is due to the service-connected lumbar spine disability. If meralgia paresthetica is deemed to have been caused or aggravated by the service-connected lumbosacral strain, the examiner must indicate whether such meralgia paresthetica involves any manifestations separate and apart from those associated with the Veteran's lumbar radiculopathy. If so, such manifestations should be identified. Please provide a complete explanation for all opinions provided. In the event the examiner who conducted the August 2009 examination is no longer available, refer the claims file to an equally qualified examiner. Should either examiner advise the requested opinion cannot be rendered without an examination of the Veteran, the AMC/RO will arrange the examination. The claims file must be provided for review by the examiner as part of the examination. 3. After completion of all of the above, the AMC/RO should re-adjudicate the claims on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a Supplemental statement of the case (SSOC). The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs